Cyber Warfare and International Humanitarian Law: Challenges and the  Way Forward

Abstract

Nowadays, the military battlefield has been changing from physical to virtual. It has been  noticed that traditional warfare is being replaced by cyber warfare. Cyber warfare is rapidly  revolving, and it is estimated that more than 100 states have developed or are developing  military cyber capacities. From the historical cyber-attack of the Siberian Pipeline Incident  (1982) to the recent Russian cyber-attack on Ukraine, cyberspace plays a crucial role in  military conflict. As cyberspace grows in military conflict, the issue of international peace  and security has become a major concern. International Humanitarian Law (IHL) is  designed to regulate and limit the conduct of armed conflicts; specifically, it is applicable to  cyber warfare to a certain extent. However, there exist gaps in the present legal framework  that make it ineffective and insufficient in addressing certain principles of IHL. This article  explores the applicability of International Humanitarian Law (IHL) in cyberspace. It will  present the limitations of applying the principles of Distinction and Proportionality and  assess the gap between the current legal framework and existing cyberspace. The article will  also argue that the law should be updated, new legal instruments are needed, civilian  protections should be strengthened with technology, and a global treaty dedicated to  regulating cyber warfare should be adopted to ensure humanitarian safeguards in the digital  age.

Introduction

In the twenty-first century, warfare has revealed a new domain: Cyberspace. Unlike earlier  conflicts fought with tanks and bombs, cyber warfare operates through digital technology.  The 2015 cyber-attack on Ukraine‟s power grid and the ongoing Russian-Ukrainian conflict  destroyed infrastructure and resulted in the loss of many civilians’ lives. These events  illustrate the severe humanitarian impacts of cyber warfare.

Cyber warfare is the use of digital technology in conducting warfare in a manner that targets  to damage, disrupt, or control the systems of an enemy. Unlike traditional military  confrontation, which has the limitatin of geography, cyber activities cross borders without  announcing themselves, and often damage dual-use technologies used by civilians and the  military. Their interdependence gives rise to significant legal and humanitarian challenges.

International Humanitarian Law (IHL) is largely grounded in the states’ practice following  the world wars. It establishes the principles that guide and limit the conduct of armed  conflict. Its core principles, distinction, proportionality, and necessity, are designed to protect  civilians and mitigate the human cost of war. In cyberspace, these norms are evolving under  unprecedented pressures.

This article has stated three primary challenges: (1) the time lag of the changes in cyber  warfare vis-à-vis the flexibility of IHL; (2) the challenge of implementing the principle of  distinction in the framework of an interconnected digital environment; and (3) conflict arises  when the proportionality principle proves insufficient to limit the uncontrollable impacts of  cyber operations. The article also provides recommendations: adopting new and modifying  existing IHLs, protecting essential civilian infrastructure with advanced technology, and  creating a legally binding international treaty regarding cyber warfare.

Legal framework

There is no treaty in international that focuses exclusively on cyber war. However, there are  several laws and legal instruments provide guidance.

1. Geneva Conventions and Additional Protocols

The 1949 Geneva Conventions and their 1977 Additional Protocols are the basis of IHL.  They express the fundamental principles of distinction, proportionality, and necessity.

However, these norms largely focus on warfare in general, not on specific cyber ware.  Therefore, it doesn‟t address cyber operations. The lack of clear references divides scholars  and states on how to use them in cyber conflicts.

2. The UN Charter

The UN Charter on Article 2(4) prohibits the use of force against the sovereignty and  territorial integrity of states. Any cyber operations which result in physical damage or injury  can be classified as the use of force under this provision. Similarly, Article 51 recognizes the  inherent right of self- defense to an “armed attack,” which some claim should apply to serious  cyber-attacks. However, there is no agreement on what intensity of a cyber operation  constitutes a crossing of this threshold and currently leaves it open to interpretation.

3. Tallinn Manual

The Tallinn Manual (2013) and Tallinn Manual 2.0 (2017) are the broadest academic studies  that try to explain how IHL applies to cyber warfare. It was produced under NATO‟s  Cooperative Cyber Defence center of Excellence. They confirm that IHL principles extend to  cyberspace. However, they remain non-binding and are based on expert opinion, without  formal acceptance by every state. Significantly, the manual shows the gaps in areas such as  attribution, proportionality and the classification of cyber operations as “armed attacks.”

The current legal framework confirms that the principles of IHL are applicable to cyber  warfare. But the lack of clear treaty law, as well as problems of attribution and enforcement,  create a gap between legal principles and the way modern conflict is practiced.

Judicial Interpretation

International courts and state practice have indirectly shaped how IHL applies to cyber  operations.

1. International Court of Justice (ICJ)

∙ Nicaragua v. United States (1986) was the difference between “use of force” and  “armed attack.” Cyber-attacks that cause serious loss, damage or casualties could be  compared to an armed attack, and would thus activate self-defense under Art. 51 of  the UN Charter.

∙ Legality of the Threat or Use of Nuclear Weapons (1996) emphasized that IHL  extends to “all means of warfare”. This statement supports a further application of  IHL to cyberspace.

2. NATO’s Approach

NATO has recognized cyberspace as an operational domain. Since 2014, it has been  confirmed that cyber attacks might be able to invoke the Article 5 collective defense  response in essence, classifying more serious cyber operations as the workings of an armed  attack.

3. Divergent State Views

∙ The United States views major cyber attacks as potentially justifying armed self defence.

∙ This is not a comfortable interpretation for Russia and China, so they would rather  talk about „information security‟ and state sovereignty and not recognize the  legitimacy of foreign intervention.

∙ The European Union stresses resilience and diplomacy, and is promoting  collaborative cyber norms rather than aggressive countermeasures.

4. United Nations Debates

The applicability of IHL has been confirmed by both the UN Group of Governmental Experts  (GGE) and the Open-Ended Working Group (OEWG). But they continue to disagree on  enforcement, particularly on when the use of force is justified and how it should be responded  to.

Even though judicial interpretation confirms the application of IHL to cyberspace, infrequent  state conduct betrays fundamental geopolitical splits, preventing an agreement that would be  universally binding from arising.

Critical analysis 

Despite existing frameworks, three core challenges reveal the inadequacy of IHL in  governing cyber warfare.

1. Temporal Gap between IHL and Cyber Warfare

IHL was drafted long before cyberspace became a battlefield. Although its principles are  supposed to be universal, their applicability to cyber conflicts remain unclear. Cyber  operations take advantage of this legal gap; states are launching disruptive attacks beneath the  threshold of “armed attack” and escaping responsibility.

2. Distinction Principle Undermined by Interconnected Technology

The principle of distinction requires the separation of military and civilian targets. But in  cyberspace, infrastructures are linked. Networks for the Internet, the power grid and  communication satellites all serve both soldiers and civilians.

Cyber attacks targeting military systems percussions for the civilian domain have, as seen in  the 2017 NotPetya malware, which disrupted hospitals and businesses across the globe, even  as the very point of attack was Ukraine. Thus, distinction, a fundamental element in IHL,  becomes nearly impossible in application.

3. Proportionality Principle Undermined by Unpredictability

The principle of proportionality prohibits attacks that would result in civilian harm compared  to military advantage. However, cyber operations are unpredictable and uncontrollable. A  virus designed to attack a military database could spread through civilian hospitals,  transportation systems, or global networks. The proportionality of such attacks can hardly be  analysed before hand making the protection of civilians weaker.

All these challenges together force us to question the usefulness and shortcomings of IHL in  the cyber domain. Although distinction and proportionality remain relevant as theoretical  benchmarks, in practice enforcement of them in cyberspace is extremely degraded.

Recent development

Recent legislative, policy, and diplomatic developments have intensified the global debate on  cyber warfare and its intersection with International Humanitarian Law (IHL). These  developments reflect a growing recognition of the need to adapt legal frameworks to address  the complexities of cyber operations.

1. European Union’s Declaration on International Law in Cyberspace

In November 2024, the European Union endorsed a declaration to the effect that international  law, including IHL, applies to cyber activities. The declaration emphasizes responsible state  behaviour and commits to enabling the development of a UN framework (Council of the EU,  2024) for holding states accountable in cyberspace. This move comes in the context of  broader international endeavours towards the formulation of norms governing state behaviour in cyberspace.

2. United States’ Cyber security Executive Order

In June 2025, the U.S. government issued a new cyber security executive order to strengthen  the United States’ cyber defences. The order is intended to update current federal policies  toward strengthening critical infrastructure and strengthening the overall posture of the  federal government on cyber security.

Although the executive order is primarily concerned with domestic cyber security initiatives,  its implications have international aspects as well, since the U.S. is frequently at the center of  initiating global cyber security standards.

3. Ongoing Debates

The intersection of cyber warfare and IHL remains an unresolved issue. Disagreements  continue over the applicability of current legal instruments to cyber operations, particularly in  terms of principles like distinction and proportionality. There are claims that current law is  ill-equipped to address the specific issues posed by cyber warfare, such as attack attribution  and potential extensive collateral harm. In order to address these challenges, there has been a  growing call for the establishment of new international agreements particularly suited to  cyber war. These agreements would seek to provide precise norms and accountability  mechanisms to ensure that cyber operations will be undertaken according to IHL and other  international legal frameworks.

These developments show progress in acknowledging the problem, but they stop short of  establishing binding rules.

Suggestion/ Way forward

The challenges of cyber warfare demonstrate that International Humanitarian Law is not  enough to protect civilians or to ensure accountability as its current stands is not inadequate.

Although its principles remain essential, it must be updated to ensure the law is applied to  technological reality. The following recommendations offer a way forward:

1. Updating and Amending IHL

One of the most urgent action to address issues related to cyber operations is contemporizing  IHL. One way is to seek an Additional Protocol to the Geneva Conventions specifically for  cyber warfare. The protocol must:

-Establish criteria for when a cyber operation meets the definition of a “use of force” or  “armed attack”.

∙ Clarify the legal status of dual-use infrastructure in cyberspace.

∙ Establish obligations to prevent indiscriminate cyber attacks.

∙ Provide more specific guidance on proportionality within the digital landscape. 2. Protecting Civilian Infrastructure with Advanced Technologies

Since it is often difficult to separate civilian systems from military ones, some important  civilian systems should get extra protection. These systems include hospitals, schools, energy  grids, humanitarian relief networks, and water supply systems. States should:

∙ Implement cyber security technologies, such as AI-driven defence systems, and strong  backup networks.

∙ Create digital markers to identify systems protected under IHL.

∙ Collaborate with private companies that usually own or manage critical infrastructure  to ensure they meet humanitarian obligations.

3. Establishing a Binding Treaty on Cyber Warfare

Although it is challenging, the international community should seek a binding treaty  regarding cyber actions with the support of the UN. This treaty could:

∙ Forbid any cyber attacks that affect civilian infrastructure, no matter the context of the  conflict.

∙ Set up international attribution systems, possibly through a UN-led organization with  technical knowledge, to reliably identify those responsible.

∙ Establish enforcement actions, including sanctions or legal consequences, for  countries that carry out or allow illegal cyber operations.

Through contemporizing existing laws and policies, protecting civilian infrastructure with  advanced technology, and fostering international agreements, the global community can  adjust IHL to the digital age. Without these actions, cyber warfare will keep putting civilians  at greater risk and threatening the humanitarian values central to international law.

Conclusion

Cyber warfare has exposed the limitations of International Humanitarian Law in its current  form. Even though IHL principles of distinction, proportionality, and necessity remain valid  theoretically, their application in cyberspace is undermined because of outdated frameworks,  connected systems, and unpredictable results.

The Russia-Ukraine conflict and other cyber incidents show how digital operations can lead  to significant humanitarian harm, mostly without accountability. If IHL does not change, it  risks becoming irrelevant in modern warfare.

Moving forward, states should modernize IHL and other policies, protect civilian  infrastructure with advanced technology and negotiate a binding treaty on cyber warfare. By  taking such actions, states can reaffirm their commitment to the humanitarian goals of  international law.

Reference(S):

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