Cyber Warfare Opens A New Front Against Civilians

Technology is a plant that is forever growing and humanity cannot currently anticipate its full height or width. The increasing use of cyberspace for virtually everything in contemporary life creates a scenario where we cannot imagine life without all the convenience it has brought.

Modern warfare is increasingly adjusting its power towards cyberspace as opposed to the traditional weapons.

The unique nature of cyberwarfare is that it does not need matching armies, it only needs keyboards, the equivalent of gunpowder in current warfare. This means that nations have lost their monopoly to wage war thus making armed conflicts more dangerous while leaving civilians ever more exposed.

Anyone with a keyboard and the skills can launch cyber-attacks against the state or any other entity that can be targeted. In a doomsday scenario, it paints a war of everyone against everyone because the skills can be learnt easily by anyone and the attendant tools are available for download on the Internet.

As such, the ability to enjoy e-commerce, among other advantages, does not come devoid of the possible damage that could result from full-scale cyberwar. In the words of Anthony Sinopoli, “The potential for disastrous consequences in a nuclear attack can be matched in the case of an all-out attack using cyber-warfare.

The example of a cyber-attack where critical infrastructures are destroyed or otherwise rendered useless can leave a state in a helpless position, causing unnecessary suffering to its citizens.”

Despite its convenience and its ability to launch attacks effectively without marching troops, there is no war that has been waged purely on cyber means.

Contemporary warfare incorporates the cyber capabilities alongside traditional methods and weapons. For instance, the Russian cyber-attacks against Ukraine and Georgia combined cyber attacks and kinetic means.

However, it is plausible that a full-scale cyberwar is possible even though recent conflicts have not been waged in that fashion. We are in the early days of keyboard combatants, and thus the future portends wars that may eliminate the need for physical armies in the invaded country.

Why, say, would a country expose its soldiers to possible injuries when it can comfortably cripple them by executing malware?

The wide ranging capabilities of cyber warfare can be deceptive as to what is allowed in the context of an armed conflict. Under the laws of armed conflict, not every action is permissible.

In other words, just because you can do something does not mean it necessarily becomes legal.In cyber-warfare, you can attack and disable hospitals or destroy dams remotely or through malware but it amounts to a violation of the laws of war. However, not every violation of the laws of war is a war crime. War crimes are a special category within the laws of armed conflict. War crimes can only occur within an existing state of war, an armed conflict.

In this case, this distinction is important because war crimes can be cyber-crimes but the reverse is not necessarily true.

The law of armed conflict provides a list of the actions that qualify as war crimes, for example willful killing, torture, biological experiments, taking hostages, or unlawful deportation. It is possible to commit egregious violations of the law of armed conflict through cyberwarfare but they will not necessarily become war crimes.

But it is not enough to classify actions as cybercrime or war crimes. The alleged crimes must be proved through admissible evidence to sustain a conviction, or to an acquittal.

Cyberwarfare is a realm where actions, violations or omissions leave no definitive evidence. Any court faced with alleged crimes of cyber-warfare will need to exercise judicial novelty.

Depending on the skillset of the perpetrators, it is possible to implicate an innocent user of cyber-space while absolving themselves of any crime.

There are no blood stains or fingerprints because sophisticated actors can erase all evidence of their involvement. Hence, war crimes by keyboard combatants are harder to prove.
 
The main challenge in the issue of evidence is because cyber weapons have no ethnicity, nationality or geographic identification. Cyberspace knows no boundaries and its weapons come with a faceless nature which traverses all keyboards, whether Kenyan or American, Estonian or Tanzanian.

The relevant provisions of Hague Law or Geneva Law can address all violations of humanitarian law committed through cyber warfare. Thus, it is needless to forge such any convention. States should rather wait for the slow crystallisation of customary law on cyber warfare than act in vain.

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