The misuse of protected indicators in cyberspace: Defending a core aspect of international humanitarian law

Abstract

International humanitarian law (IRL) imposes a complex array of laws regarding the use of markings, signals, symbols and other indicators. Protections related to indicators are also directly implicated in the laws of perfidy and ruses. Although these laws are generally well accepted in principle, practitioners struggle to apply these rules in the newer, manmade domain of cyberspace. Despite recent steps forward in the application of IHL to cyber, questions surrounding enemy, neutral, and protected indicators remain largely unresolved. This paper seeks to answer these thorniest of issues related to military cyber operations during international armed conflicts. The article is divided into two sections. The first addresses protected and specially recognized indicators, particularly those of the UN and the Geneva Conventions. The IHL rules regarding these symbols are defined and applied in the context of cyber operations. This section also discusses perfidy and proximate causation in the cyber context. The second turns to the improper use of national indicators in cyberspace, particularly the definition of military emblems, which draws on a separate body of law than protected or specially recognized emblems. Although the misuse of indicators may also implicate international criminal law, this article focuses exclusively on IHL applicability.