This is part of a series on “The Digital in War: From Innovation to Participation,” co-produced by Carnegie’s Democracy, Conflict, and Governance Program and Swedish Defense University.
Technological advances over the past century have enabled modern armed forces to project power at a scale and speed never seen before. In parallel, the information revolution has dramatically expanded the capacity of ordinary citizens to actively participate in war by producing, relaying, and consuming information. Mediating war has thus become one aspect of fighting it.1
These developments call into question whether traditional theories of war are still adequate for understanding contemporary forms of warfare. Some commentators have argued that the information revolution has radically transformed the nature of war by erasing the distinctions between bystander, victim, and perpetrator to create a new hierarchy of war where everyone is now a participant.2 If so, the implications are profound, not least from a legal point of view.
The modern law of armed conflict is built on the principle of distinction—the idea that to avoid unconstrained warfare, lawful targets must be distinguished from civilian persons and objects.3 If the information revolution really has turned civilians into participants in warfare, this may render them lawful targets liable to attack. Should this affect a large number of civilians or even the civilian population as a whole, it could compromise the principle of distinction as the pillar on which much of the law of armed conflict rests. In turn, this could open the door to unlimited warfare.
There is no denying that the information revolution puts the principle of distinction under significant pressure. Even so, the idea that the traditional binaries of military and civilian, participant and bystander, war and peace, have collapsed into one another overstates the case. This piece argues that, at least for now, the key legal challenges lie elsewhere.
Making Sense of Modern War
Classic doctrines of war may go some way to accommodate new developments in the conduct of warfare. For example, Prussian general and military theorist Carl von Clausewitz insisted that the essence of war is combat,4 yet he also recognized that the intensity of war varies a great deal in actual practice, to the point where it may consist of a mere threat of force without actual hostilities.5 His understanding of war not only helps to distinguish war from nonwar on a general level but also between different forms of participation in war with reference to whether they involve participation in combat. Some forms of participation may transform a bystander into an active participant, whereas others may not. This is reflected in the law of armed conflict. Civilians enjoy general protection from the dangers of military operations, but they lose this protection and become liable to attack for such time as they take a direct part in hostilities.6 Using a smartphone to direct an assault against enemy forces without doubt amounts to direct participation in hostilities, but using the same phone to rant against enemy forces on social media or donate funds for the war effort does not. In the eyes of the law, not all digital participation is equal.
In everyday practice, most governments and people are also capable of distinguishing war from nonwar and participation in combat from other forms of supporting the war. For example, Russian missiles and drones have crossed into the territory of nations bordering Ukraine on several occasions since 2022, yet these were not treated as Russian acts of war against the North Atlantic Treaty Organization (NATO).7 Likewise, there is a very real difference between picking up a Molotov cocktail and hurling it at an advancing tank compared to posting a video of the same event on social media. The digital revolution has not led to the collapse of all existing categories and distinctions. The extremes are still distinct and often can be distinguished from one another without too much trouble. Rather, the problem lies with the many gray cases that fall between the extremes. For example, Western support for Ukraine in its war with Russia raises the question of whether Western nations qualify as cobelligerents. Similarly, a civilian’s use of a mobile phone to transmit actionable intelligence poses the question of whether doing so meets the definition of direct participation in hostilities.
Looking at these matters from a broader perspective, it is also important to bear in mind the normative function of law. It is sometimes claimed that the existing rules are not fit for the conditions of contemporary warfare. Yet the fitness of the law is not simply a question of whether the rules accurately reflect the realities of modern war but whether the law is fit for the purpose of regulating modern conflict. Law is not a descriptive project but a normative one that holds up the image of a certain future and requires conduct to conform to that image. The point is that if technological developments have led to wider civilian participation in war in a way that disrupts existing legal categories and thresholds, it should not readily be assumed that the law is out of touch and in need of change. Instead, one should ask whether those categories and thresholds serve valuable goals and, if so, how they might be reinforced to secure compliance. In other words, it should not automatically be assumed that the law must bend to reality, but one should ask whether reality should perhaps bend toward the law.
Is the Law Out of Date?
Even if traditional binaries have not collapsed completely, the divide between active participant in war and passive bystander has become more elusive. This does pose significant legal challenges. Most of the rules and legal concepts that apply in this area were designed for the pre-digital age. Often, it is not clear how they apply in the digital era. A cyber operation carried out by Ukraine’s military intelligence services against Russia in 2023 illustrates the point.
According to reports published in December 2023, Ukrainian intelligence services gained access to several central servers of Russia’s tax authorities, infected them with malware, and managed to destroy the databases hosted on them and on hundreds of regional servers.8 As a result, Russia’s tax services were said to have been left paralyzed. Since the cyber operation took place within the context of the ongoing international armed conflict between Russia and Ukraine and had a clear and acknowledged nexus to that conflict, the law of armed conflict applies. The main concern from this perspective is whether the Ukrainian operation complied with the principle of distinction, that is the duty to spare civilian objects and persons and direct military operations only against military objectives. The application of the principle hinges on two major questions.9
The first question is whether data is an “object” for the purposes of the targeting rules of the law of armed conflict. This matters because the principle of distinction only protects civilian objects: if data is not an object, the principle of distinction does not prevent the destruction of potentially vast quantities of data, including of the type held by Russia’s tax authorities. The question is debated in the literature and has not been conclusively answered in state practice.10
Assuming that data fits the definition of a civilian object, the second question is whether the destruction of data amounts to an “attack” for the purposes of the law of armed conflict and thus triggers the various rules that must be observed in the conduct of attacks. The notion of an attack refers to an act of violence against an adversary, whether in offense or defense.11 It is not immediately obvious why deleting data used in the ordinary operation of a computer system—that is in a way that does not cause kinetic harm to the system itself or produce destructive effects—would amount to an act of violence.12 Deleting data without causing material damage may be described as an act of violence if the notion is extended to acts that do not cause kinetic harm but still prevent a computer from functioning, for example, by corrupting its operating system in a way that renders it inoperable. However, it is not clear whether state practice supports such an understanding of the notion of violence and, in any event, whether the mere deletion of data without compromising a computer’s operating system satisfies the requirement.
Legal Narratives and Information Advantage
The digital transformation of warfare poses a long list of technical questions about how the existing rules of war apply to novel developments on the battlefield and beyond. In addition, the information revolution has opened the floodgates for employing law and legal arguments for the purposes of contesting the information environment.
Modern information and communication technologies facilitate the production of legal claims and arguments in a variety of formats, such as simple social media posts and extensive and highly sophisticated blogging. As in other spheres, the ease with which such legal information can be produced, transmitted, and consumed has led to greater participation in these activities. This has given access and a voice to a wide variety of actors from diverse backgrounds and with varying levels of status and expertise, including public officials, private citizens, reputable experts, lay persons, and imposters.
The impacts of these developments are considerable. The greater variety, speed, volume, and diversity in the production, availability, and flow of legal information has made it more difficult for traditional actors, including governments, to deploy effective legal narratives, understood here as the representation of events from a legal perspective.13 Simply put, traditional actors struggle to tell their legal stories in compelling ways. Government narratives compete with a torrent of other stories, which are produced and deployed at a speed that traditional bureaucracies were not designed to match and at volumes that are difficult to comprehend. Although the quantity of both expert and nonexpert commentary has increased, the inability to process much of the available analysis nonetheless levels the playing field. The sheer number of expert analyses, and the fact that they often point in very different directions, undermines their authority.14 In fact, not only are expert analyses caught in the crosshairs of social media contestation and tribalization, but the dividing lines between objective scholarly analysis, legal activism, and partisan engagement are not watertight to begin with. In such an environment, legal misinformation, whether borne out of ignorance or deliberate design, spreads easily, and legal narratives are often deployed for information advantage.
Legal commentary on social media platforms is characterized by a rush to reach definite conclusions that typically lack nuance and a sufficient foundation in fact and in law. Much of the debate seems animated by a desire to score points by appealing to legal norms, in particular to legitimize one side and delegitimize the other, rather than an attempt to grapple with what are often complex legal issues arising in circumstances of factual uncertainty. As a result, the law is threatened not only by noncompliance and interpretations that seek to escape some of its constraints but also by overly restrictive interpretations that bear little resemblance to mainstream understandings of the rules and to operational realities. The use of law as an instrument of information warfare may be highly corrosive for the rule of law.
Conclusion
The potential of technological innovations to disrupt the established patterns of war is immense. This is not, of course, a new development: warfare is not static. What is new is the fact that the increased reach, tempo, destructiveness, and availability of conventional force is now married to the ubiquity, speed, scale, and impact of measures short of war, including in the digital and information spheres. This has, among other things, enabled wider participation in hostilities. However, the idea that these developments have fully erased the dividing line between active participants and passive bystanders in war presses the point too far. The line has certainly become more blurred or porous, but at least for now, it is still meaningful to distinguish forms of participation in war that amount to direct participation in hostilities and other types of engagement that are not so closely related to combat. Indeed, this is a line worth preserving in an attempt to prevent a slide toward unconstrained warfare.
Sweeping claims that the regulatory framework of war is out of step with current strategic realities also go too far. Such claims ignore the fact that the law is reasonably well equipped to deal with the disruptive effects of technological change and the transformation of warfare. They also risk diverting attention away from other, more pressing challenges, in particular the lack of agreement as to how specific pre-digital rules apply in an increasingly digitalized battlespace and the way in which modern information and communication technology fuels a contest of competing legal narratives that turns law and legal arguments into an extension of the warfighting effort.
Aurel Sari is a professor of public international law at the University of Exeter, a fellow in the Supreme Headquarters Allied Powers Europe, and a senior fellow at the United States Military Academy.
Notes
1See David Patrikarakos, War in 140 Characters: How Social Media is Reshaping Conflict in the Twenty-First Century (Basic Books, 2017); and P. W. Singer and Emerson T. Brooking, Likewar: The Weaponization of Social Media (Houghton Mifflin Harcourt, 2018).
2Matthew Ford and Andrew Hoskins, Radical War: Data, Attention and Control in the 21st Century (Hurst, 2022).
3Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) International Court of Justice Rep. 226, para. 78 (describing distinction as a “cardinal” principle of the law of armed conflict).
4Carl von Clausewitz, On War (Princeton University Press, 1976), 87.
5Clausewitz, On War, 604.
6Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I),” June 8, 1977, Article 51(3).
7For example, see “Ukraine War: Romania Reveals Russian Drone Parts Hit Its Territory,” BBC News, September 6, 2023, https://www.bbc.co.uk/news/world-europe-66727788.
8Elsa Court, “Military Intelligence Hacks Russian Tax Authorities,” Kyiv Independent, December 12, 2023, https://kyivindependent.com/military-intelligence-hacks-russian-tax-authorities.
9See also Kubo Mačák, “Nothing Is Certain but Death and Taxes (Unless You Get Hacked): An International Law Perspective on Ukraine’s Cyber Attack Against Russia’s Federal Tax Service,” EJIL:Talk, December 14, 2023, https://www.ejiltalk.org/nothing-is-certain-but-death-and-taxes-unless-you-get-hacked-an-international-law-perspective-on-ukraines-cyber-attack-against-russias-federal-tax-service.
10“Military Objectives,” International Cyber Law Interactive Toolkit, accessed September 27, 2024, https://cyberlaw.ccdcoe.org/wiki/Military_objectives#Qualification_of_data_as_an_object_under_IHL.
11Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, “Additional Protocol I,” Article 49(1).
12Michael N. Schmitt, ed., Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations 2nd edition (Cambridge University Press, 2017), Cf. Rule 92(3).
13On the notion of legal narratives, see Aurel Sari, “Norm Contestation for Strategic Effect: Legal Narratives as Information Advantage” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2023): 119–154, 125–133.
14See Michael N. Schmitt, “Normative Architecture and Applied International Humanitarian Law,” International Review of the Red Cross (2022): 2097–2110, 2108.