‘Objects’? The Legal Status of Computer Data under International Humanitarian Law
Open Access
- 30 January 2023
- journal article
- research article
- Published by Oxford University Press (OUP) in Journal of Conflict and Security Law
- Vol. 28 (2), 349-387
- https://doi.org/10.1093/jcsl/krad002
Abstract
This article discusses whether computer data constitutes an ‘object’, in the meaning of this term under international humanitarian law (IHL). After providing background on what is meant by ‘computer data’, and on the significance of any determination whether computer data constitutes an ‘object’ for the purposes of IHL, the article proceeds to consider the meaning of the term ‘object’ as found in the First Additional Protocol to the Geneva Conventions (API). Recourse is made to the customary rules of treaty interpretation while focusing on both the English and French versions of API. The ordinary meaning of the term ‘object’ in its context in API solely connotes material things, thus excluding computer data. Moreover, recourse to the object and purpose of API, or to so-called ‘evolutionary’ interpretation, does not lead to a different conclusion. Considering the importance of customary international law for states non-parties to API, and for the purposes of non-international armed conflicts, the article proceeds to analyse whether computer data constitutes an ‘object’ for the purposes of custom. The article analyses the development of the term ‘object’ in legal discourse over the past century in determining what states intended this term to mean, and finds that here, too, states considered ‘objects’ in the context of IHL to be material things. It also explains that there is no apparent trend among states as to whether data constitutes an ‘object’, whereas the paucity of official government statements is far from the necessary volume for it to carry particular legal significance.Keywords
This publication has 15 references indexed in Scilit:
- A Short History of International Humanitarian LawEuropean Journal of International Law, 2015
- The Notion of ‘Objects’ during Cyber Operations: A Riposte in Defence of Interpretive and Applicative PrecisionIsrael Law Review, 2015
- The Nature of Objects: Targeting Networks and the Challenge of Defining Cyber Military ObjectivesIsrael Law Review, 2015
- Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian LawIsrael Law Review, 2015
- Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening)American Journal of International Law, 2014
- The Principle of Distinction and Cyber War in International Armed ConflictsJournal of Conflict and Security Law, 2012
- THE APPLICATION OF INTERNATIONAL LEGAL NORMS OVER TIME: THE SECOND BRANCH OF INTERTEMPORAL LAWNetherlands International Law Review, 2011
- High Hopes, Scant Resources: A Word of Scepticism about the Anti-Fragmentation Function of Article 31(3)(c) of the Vienna Convention on the Law of TreatiesLeiden Journal of International Law, 2011
- The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections on Costa Rica v. NicaraguaLeiden Journal of International Law, 2011
- Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse ConsequencesThe Law & Practice of International Courts and Tribunals, 2010