A rumor was spread that Israel was the brain behind an elaborate trojan horse, Stuxnet, which alegedly penetrated into the Iranian nuclear reactor and apparently caused damage. the trojan horse contaminated some civil facilities as well. The trojan horse, which utilizes no less than four different zero-day vulnerabilities in Microsoft Windows seems interesting and elaborate. However, the alleged involvement of Israel, alongside the claim that civilian facilities were damaged in the act, raise one interesting question: Could there be electronic war crimes?
The Public International Law, which bases the humane treatment to civilians in the different Geneva Conventions, sets the standards to use in times of war and defines acts prohibited by states in order to keep wars as civil as possible. The different conventions limit force and sanctions against civilians, but do those treaties and conventions apply on electronic warfare?
Prima facia, article 53 to the fourth Geneva Convention which deals in protecting civilians in times of war states that “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations“. However, the fourth convention applies only, in this article, to occupied territories (Prosecutor v. Dario Kordic, Mario Cerkez). In contrast, the 1977 protocol amended and added to article 51 and stated that “Indiscriminate attacks are prohibited. Indiscriminate attacks are:those which are not directed at a specific military objective; “. Meaning that an electronic attack against civilian property that couldn’t discriminate between military and civilian facilities are prohibited (However, most states have not adopted the 1977 protocol).
Jack Goldsmith states that the inability to determine which computers are military and which are civilian may protect the use of computer viruses in electronic warfare, but I reckon the other way around: In the same way that indiscriminate shooting against innocent civilians is a war crime, so is using a trojan horse that does not differ civilian and military computers. The indiscriminate use is as prohibited as the use of chemical weapons which cannot discriminate civilians and soldiers. It is not a coincidence that the terminology is the same: computer or biological viruses.
And what about the civil liability? Theoretically, the state immunity (and liability) should be limited in times of war (and see, in IsraelThe Act of Civil Torts (State Liability) 1952) and the state should not be liable for acts where the state protected itself; however, this doctrine should not be used in cases where civil damage arose when the state knew, should have known and forseen the damage (HCJ 8276/05Adallah v. Minister of Defense). Therefore, the civilian casualties in Israel’s alleged cyber-attack should have liability against it.
Jonathan,
Assuming that the virus/trojan was created by Israel (unproven!) and that it was targeted at a military installation (unproven!) and created economic damage (unproven!) – is that different than the missile attack on Israel financed by Iran (unproven!) in two fronts that caused a tremendous economic damage to Israel by the decline in tourism? The loss of working days? Loss of investment in Israel? The enormous investment in resources that could be invested in Israel’s citizens?
If you want to make these assumptions and call this a *war*, you have to accept the possibility of an economic damage to the fighting countries. Which country, in a historical perspective, pays damages to which after a war? I will leave that as an exercise for the reader. Hint: It’s not necessarily the country which suffered the least damage.
But what you are doing here is a serious logical fallacy – you are claiming that an economic damage and use of WMD are one and the same! This is in my opinion the maliciousness of the article you have written. Your transition from a potential weapon to a WMD like a chemical or biological agent.
Let me quote: “In the same way that indiscriminate shooting against innocent civilians is a war crime, so is using a trojan horse that does not differ civilian and military computers. The indiscriminate use is as prohibited as the use of chemical weapons which cannot discriminate civilians and soldiers. It is not a coincidence that the terminology is the same: computer or biological viruses”. After reading this I am not at all sure where you stand morally on this, but according to my morality there is a ***very big difference*** between destroying computers and exterminating civilians.
So – yes, It is possible that an Iranian connected to a ventilator will die because the computer operating it will crash. Not likely that a ventilator would run Windows, but let’s assume it will happen. This is not mass destruction, Jonathan! In the same vein, it’s possible that a civilian will fall and break his neck because he tripped in the dark during a blackout during a bombing; A civilian might die because the ambulance couldn’t get there in time because a road used by both military and civilians was cut off. With all the sympathy for innocents hurt in time of war, these are not war CRIMES!
You are trying to force-fit the definition of war crimes for these situations and using logical fallacies and rhetoric to accomplish your goal. You are not playing fair.
— Arik