Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law
Israel Law Review
Cambridge University Press
This article presents the case for a progressive interpretation of the notion of military objectives in international humanitarian law (IHL), bringing computer data within the scope of this concept. The advent of cyber military operations has presented a dilemma as to the proper understanding of data in IHL. The emerging orthodoxy, represented by the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare, advances the argument that the intangible nature of data renders it ineligible to be an object for the purposes of the rules on targeting in IHL. This article, on the contrary, argues that due to its susceptibility to alteration and destruction, the better view is that data is an object within the meaning of this term under IHL and thus it may qualify as a military objective. The article supports this conclusion by means of a textual, systematic, and teleological interpretation of the definition of military objectives found in treaty and customary law. The upshot of the analysis presented here is that data that does not meet the criteria for qualification as a military objective must be considered a civilian object, with profound implications for the protection of civilian datasets in time of armed conflict.
This is the author's version of a work accepted for publication by CUP. A definitive version was subsequently published in Israel Law Review / Volume 48 / Issue 01 / March 2015, pp 55-80. Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2015 DOI: http://dx.doi.org/10.1017/S0021223714000260 Published online: 29 January 2015
Vol. 48, Issue 1, pp. 55 - 80