The Inadequacy of International Humanitarian Law in Regulating Cyber Warfare: A Critical Analysis of the Geneva Conventions and Additional Protocols

الملخص

This Article critically examines the shortcomings of applying the International Humanitarian Law (IHL) to cyber warfare, focusing on the ineffectiveness of the Geneva Conventions and their Additional Protocols in a non-kinetic domain. Despite their theoretical applicability, the enforcement of these legal frameworks is fundamentally undermined by the unique technical and geopolitical realities of digital conflict, as explored through the doctrinal methodology. The article addresses the key question: what legal challenges hinder the effectiveness of enforcement mechanisms in addressing cyber warfare? Findings reveal that while existing legal instruments provide a foundational basis, they are ill-equipped to address cyberspace’s distinctive challenges. The application of core IHL principles such as distinction (differentiating between civilian and military targets) and proportionality (avoiding excessive civilian harm) is severely complicated by the highly interconnected nature of civilian and military networks. This creates a profound enforcement gap, where the primary obstacle is attribution. It is nearly impossible to meet the high legal burden of proof for state accountability, an issue compounded by jurisdictional and sovereignty ambiguity, the involvement of non-state actors, lack of enforcement mechanisms and compliance incentives, challenges in regulating cyber weapons, and ambiguity on the use of force. The article concludes that simply applying outdated laws is insufficient for effective deterrence. It advocates for a fundamental shift towards a multistakeholder governance model involving states, private tech companies, and civil society. This approach is essential for developing new norms and strengthening enforcement mechanisms tailored to the digital domain, including the establishment of an independent international body to assist in attribution and legal cooperation. This shift is crucial for closing the legal vacuum and ensuring accountability.