Prepared by the researcher – – Sayed Tantawy Mohamed Sayed – Master in Public International Law and PhD Researcher
Democratic Arab Center
Journal of Afro-Asian Studies : Seventh Issue – November 2020
A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin. The journal deals with the field of Afro-Asian strategic, political and economic studies
The threat of cyber warfare looms greater than ever. Today, technological advances and the growing digital infrastructure link entire societies with a wheel of complex and interconnected systems, and the Internet has become the central nervous system in society.
Information and communication technology plays its role, be it in the field of work, learning or entertainment. The Internet enables the dissemination of knowledge and information in an unprecedented way in world history. The power of social entanglement connects and affects populations in ways that are completely separate from governments, and in a way that these governments never expect. It has enabled individual empowerment, self-expansion and the diffusion of unfamiliar ideas through a mechanism that is mostly unaffected by borders or diplomatic or political considerations. Today, anyone can quickly influence perceptions, values, ideas and biases through their ability to create and distribute content on a global scaleBut the prevalence of the Internet has also given birth to criminal activities and created new ways of gathering intelligence and conflict information. Weaknesses in operating systems, software, and security situations open the door to the possibility of actions that threaten basic services provided to the civilian population, facilitate economic espionage, and affect government operations. There are viruses, worms, distributed denial of service attacks, property theft, and spam and fraud, all of which undermine the credibility of ICTs and the ability of societies and economies to operate.
Advances in digital technology and the interconnected interconnectedness of computing and communications have brought about many changes that affect the way we live. From 2000 to 2008, the Internet expanded at an annual rate of 290 percent globally, and currently an estimated 1.4 billion people are online, which is approximately 25 percent of the world’s population. Technology has advanced very quickly and is much more user-friendly; At the same time, people around the world are getting more advanced use of technology. These trends have also created unparalleled opportunities for cybercriminals. Criminal behaviors that would have been unimaginable a few years ago have become everyday realities today. Today’s digital technologies offer ordinary citizens the tools that have the power and the capacity to inflict massive damage. As never before, and at low cost, criminals can cause enormous harm to individuals, companies, and governments from places no one has heard of. New advances in technology, both at the physical and the soft level, create new opportunities for cybercriminals; Although the same crimes that are illegal outside the Internet are, in principle, considered equally illegal in cyberspace, online crimes take different forms with regard to the nature of the offender and the proof of the crime. In order to create a mechanism for monitoring cyberspace and a form of deterrence for cyber criminals, a number of countries around the world have reformed their current laws and legislation; However, these solutions have proven to provide vague and ineffective solutions. This book is said to be for establishing ethical standards in cyberspace.
Part One : Definition of Cyber Wars:
To define cyber warfare, cyberspace must be defined, as the Oxford Dictionary defines it as “: the virtual environment through which the communication process is completed via computer networks.” Based on this simple definition, cyberwarfare can be considered as a form of conflict with political aims, which is located within the environment. Despite the attempts of experts, states and international organizations to find a unified definition of cyber warfare, yet no comprehensive general definition has been established for it. For the United States and NATO, the focus is on the economic and material aspects of cyber warfare, unlike the countries of the Shanghai Cooperation Organization. Which is trying to advance a definition that includes aspects of national sovereignty and preserving the borders and cultural identity of peoples as targets for conflict in cyberspace. However, the definition of the group of NATO experts in Rule 30 of the “Tallinn” guide.
Manuel de Tallinn on the applications of international law in the areas of conflict and cyber warfare states: “All cyber operations, whether defensive or offensive, which are believed to cause injuries or deaths to humans, or damage and damage to physical objects The term “cyber warfare” appears to be used by many groups of people to denote various things. The term is used here to refer to the means and methods of warfare that consist of operations in cyberspace that rise to the level of armed conflict or take place in its context, within the meaning of international humanitarian law Perhaps the best simplified definition of cyber warfare is that which considers it a group Hostilities directed against electronic state data stored, processed, or The exchange from one computer to another with the aim of detecting, copying, modifying, destroying, or obstructing its flow, is like an attack on the air traffic control system.
Part 1.1 : The Principle of Distinction in Electronic Warfare
At the beginning of the law of war, it calls on the parties to the conflict to make sure during the armed conflict that the attacks are directed at combatants and not civilians, and if civilians are the targets, those parties must ensure that civilians have lost the protection established for them under international humanitarian law, as a result of their participation in military operations in a manner Directly, and the question here is, can cyber attacks distinguish between combatants and civilians?
Defining combatants in international humanitarian law requires a degree of responsible leadership and organization. These requirements exist in countries whose armies possess electronic warfare capabilities. And international humanitarian law defines combatants in a confused manner regarding cyberspace, as it does not recognize individuals who voluntarily participate in cyber attacks against an opponent, for example, amateur hackers who carry out attacks against an adversary state for political or ideological justifications, these attacks justify the target state to respond by means Appropriate, in light of electronic warfare, they are not considered within the category of legitimate combatants, but rather within the category of unlawful fighters or civilians who are not protected as long as they participate in hostilities. Therefore, the pirates participating in those operations are preparing a legitimate target for targeting, so participation is achieved when the causation is achieved between the civilian action. The contributor and the achieved result that shows tangible results on the opponent’s power. Participation in an action that does not lead to that result does not achieve the meaning of direct participation, and this is directed towards electronic warfare as is the case in conventional war For the civilian who contributes to distributed cyber attacks, the contribution must be effective, leading to the normal course of things to achieve the expected result, as for contributing a small part that does not achieve the result alone, we are not facing direct participation, as a vehicle driver carrying a weapon as part of the war effort like the researcher at the university. Or the contractor to develop a computer hacking program, whose work according to the chain of events is not sufficient to lose protection. The extent of the legitimacy of the decision to direct electronic attacks against dual-use targets depends on the intent behind the attacks. Cyber attacks are legitimate if they target a facility Dual use to achieve a military advantage, and vice versa, if the target is behind the attack undermines the political support for the conflict party, not to achieve the military advantage. International humanitarian law imposes obligations on the attacking party and the defending party. These obligations are contained in Article 52 and Article 52 of the First Additional Protocol. The question is, to what extent can electronic warfare fulfill the requirements of Article 52 and Article 52?
Article 52 (Precautions during Attack) stipulates many measures that must be adhered to by whoever is planning an attack or deciding on it. The cyber attacker must direct his attacks to the electronic elements of military targets, in line with the requirements of the principle of proportionality, but in practice there is a difficulty in predicting accidental losses, in the case of cyber attacks, from traditional attacksAs for Article 58 (precautions against the effects of attack), when applying Article 58 to electronic warfare, it is important to note that the delegations participating in the diplomatic conference indicated that the term (as much as possible) that was mentioned at the beginning of the article obliges the parties to provide protection according to the capabilities of the party in Armed conflict, and not exceeding its capabilities, a specialist in the field of electronic warfare goes on to say that it is difficult to secure protection for electronic networks over time and as a result another trend goes that protection is provided to the most vital installations to implement the requirements of Article 58.
The second content of Article 58 relates to taking precautions under its control of the civilian population or civilian property that falls under the control of a military port. An obligation arises on the commanders of that port to take measures that protect civilians and civilian property from the results of military operations, including attacks by the enemy, similar to any computer Internet, electronic systems, transmitters, and communication devices in hotels, under government control, entails the implementation of this commitment And the implementation of the commitment during electronic attacks by the enemy, for the government to take measures it deems necessary to control the computer network, to ensure the continuation of the government’s work, that network remains civilian while military communications remain a legitimate target for targeting.
Part 2.1 : Cyber War and Armed Cyber Attack Requirement:
The cyber warfare is required to be carried out by carrying out an armed cyber attack, within the existence of an armed conflict in its traditional sense, and this is what was enshrined in Rule 20 of Tallinn’s Handbook on the application of the law of armed conflict, as it stipulated that all Siberian activity should be subject to the law of armed conflict, but it stipulated That this takes place in the context of an armed conflict, whether international or within the state’s geographical borders. Therefore, Rule 26 of the Tallinn Handbook defined “members of the armed forces. As a result, mercenaries in cyberspace according to Rule 28 do not enjoy the status of combatant or prisoner. It is worth noting the ambiguity of the concept of attack. Armed electronics and the difficulty of determining it in practice, and the vagueness of the attack concept here leads to ambiguity of the targets Also, the electronic attacks target the military electronic network of the army of the enemy state, but sometimes this attack takes place outside the armed conflict and by people strangers to the parties to the conflict, and then the issue of the legitimacy of the target in such a case arises as one of the most prominent factors that led to the emergence of cyber war, It is the great development that it is witnessing Communication technology, which in turn spawned a new society called the “electronic society” as a result of the influence of internet technology and social networks, and this is what led many countries to adopt electronic administrative management, meaning “e-governments This is what made it easier for everyone to launch attacks through the virtual space, given the large spread of the Internet in the world The economic interests of the major powers, expansionist ambitions, and the desire to dominate other countries by non-traditional means have increased to the adoption of Siberian war as the ideal means to achieve those goals in the easiest and fastest way, while sparing the human losses among the armed forces that are indispensable in the case of the classic war that is used. It contains the classic means of war, such as soldiers, planes, tanks, and others. Technological development has turned the traditional concept of national security on its head, because the existence of cyberspace changed the patterns of international relations and the rules of war. As a result, the borders are no longer prohibited or important, and the risk of local destruction is no longer limited to the parties to the conflict, but can extend to countries whose national networks have crossed the malicious information programs.
Regarding the seriousness of this type of war, the commander of the Israeli Military Intelligence Division, General “Aviv Kochavi,” declared at the annual conference of the Center for National Security Studies that “cyber warfare” has become, in his view, more important than the discovery of gunpowder. He stressed that the field of cyber warfare is still at the beginning, and that serious developments await it in the future, stressing.
The boom brought about by the cyber war, where ten people were required in the past to gather intelligence information, for example, but now, after the development in this field, we can do that task through one person only In this regard, the ICRC is concerned about cyber warfare due to the weak electronic networks and the potential human cost of cyber attacks. When a country’s computers ornetworks are attacked, hacked, or obstructed, this may put civilians at risk of being deprived of basic needs such as drinking water, medical care, and electricity. If GPS systems are not working, civilian casualties may occur by disrupting takeoffs of rescue helicopters. The text of the Manuel d Tallinn Manualstates the legal responsibility of the state in general in Rule 6 of it, whereby the state holds international responsibility for the assigned cyber operations. It has, which represents a violation of its international obligations, especially the cyber operations carried out from its cyber infrastructure (Al Qaeda), 7 but what distinguishes international responsibility for crimes committed during cyber war is the ambiguity of the basis on which it can be based, i.e. is it based on risk theory or on the basis of Illegal action, for the establishment of international responsibility in this field, 3 main conditions must be met: Existence of damage resulting from an unlawful act committed by a specific state. Liability shall be excluded if the damage is the result of a force majeure, or a mistake committed by the state that was affected by the damage, and the activity with the damage resulting from the use of cyberspace that causes damage may be legitimate, but for considering the use of this space legitimate, conditions must also be met Also, the party against which the conflict that may arise in connection with the implementation of a cyber attack by a certain state against another country may be brought up, is it the UN Security Council (Manuel de Tallinn) “from the Tallinn 18 guide,” according to the Conseil de Sécurité rule of the Council International security, or as the body competent to maintain international peace and security, is the issue related to waging war against a state, or is the International Court of Justice (Cour Internationale de Justice is the only authority competent to deal with this dispute, considering that the issue is related to the arrangement of primary responsibility, and compensation for damages caused to the injured state The world has become in the current period a new type of arms race, not similar to what is known in the field of conventional and non-conventional weapons, and this race is based on the creation or development of electronic programs designed for military purposes known as Cyber. Some countries have brought to mind the theory of the balance of terror that has prevailed for decades on the international community, and in particular the race of states to acquire weapons of mass destruction, but in a somewhat different way, using electronic technologies in the range of hostilities. Researchers have started not more than five years ago to research and legal analysis on this topic, in light of confirmed data that a threat Cyber attacks will cause it at the level of international peace and security, with a level no less than the most serious threats known internationally.
The Second Part : Rules of International Humanitarian Law
In addition to the rules of the “Tallinn” guide relating to the rules of international law applicable to cyber wars that are waged during armed conflicts, the rules and principles of international human law, especially the customary ones, must also be applied, as a condition of “Martinenzo” and other customary principles, such as the principle of distinction, proportionality, military necessity …. etc. Given that those rules are peremptory or binding on all, which was recently included in the rules of the “Tallinn” guide, which included in Rule 20 the issue of applying the law of armed conflict to cyber wars, while Rule 14 was devoted to talking about the principles of necessity and In addition to the above, the application of international humanitarian law in cyber warfare aims to limit the use of these cyber weapons when they are not legitimate, and there is no doubt that international humanitarian law attaches special importance to protecting civilians from the dangers of war operations. It always affirms that the right of the parties to the conflict to choose the methods and means of warfare is not an absolute right, rather it is restricted to respect for the lives of civilians That is why we find that the 1977 Protocol I contains a rule that is considered a basic guarantee for general protection from the effects of hostilities, which states: (Parties to the conflict shall distinguish between the civilian population and combatants, and between civilian objects and military objectives, and then direct their operations against military objectives without Others, in order to ensure respect and protection of the civilian population and civilian objects Based on this rule, a number of humanitarian principles governing the behavior of combatants have been decided, in order to protect the civilian population from the dangers resulting from military operations. It goes without saying that adherence to these principles would achieve general protection for children from the dangers of fighting, as they are more vulnerable to injury, so the place calls for reminding and emphasizing the most important of these principles The child needs to be protected in particular during armed conflicts, which was recognized by the Fourth Geneva Convention of 1949. Indeed, the First Protocol of 1977 added special protection in favor of children in situations of armed conflict. It states: “Children must be accorded special respect, and protection must be guaranteed against any form of shame, and the parties to the conflict must provide them with the care and assistance they need, whether because of their young age, or for any other reason.
The Second Protocol also guarantees Article 4/3, which states that “Children shall be provided with care and aid to the extent they need it to protect children during non-international conflicts.The first protocol stipulates in Article 8/1 that births and newborns are to be classified with the wounded and sick as a group in need of protection.
The fourth convention affirms in Article 24 that children need special care, stating that “children under fifteen who have been orphaned or separated from their families due to war may not be left to themselves, and that their subsistence, the practice of their religious beliefs, and their education should be facilitated in all circumstances While international humanitarian law takes children into account, it has recognized that special measures must be taken for the sake of providing relief to children, reuniting families separated by the war, as w ell as evacuating children from besieged or encircled areas.
Part 1.2 : The Role of ad hoc International Tribunals in Determining Individual Responsibility for War Crimes
It is not only the state that violates the laws and customs of war that bears international responsibility, but there is also the individual’s criminal responsibility the Nuremberg and Tokyo tribunals, which were held after World War II to try war criminals, issued a number of rulings that contributed significantly to the formation of the law relating to individual criminal responsibility under international law. These trials paved the way for the United Nations to assert individual criminal responsibility for human rights violations in wartime, when the United Nations General Assembly adopted Resolution 90 (D-1) in 1946, by which it approved the principles of international law stipulated in the Charter of the Nuremberg and Tokyo Tribunals. The following year, the General Assembly commissioned the International Law Commission to prepare the drafting and codification of these principles, as well as to codify violations against peace and human security. In the year 1950 the International Law Commission adopted its report on the principles of international law recognized in the Charter of the Nuremberg Tribunal. The General Assembly’s affirmation of the Nuremberg Tribunal’s principles and their drafting by the International Law Commission were important steps towards a law for international crimes involving individual responsibility. Like this, the Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the General Assembly in 1948, which classified genocide, whether committed in peacetime or in time of war, as a crime under international law. Likewise, the Geneva Conventions of 1949 adopted the principle of the individual’s criminal responsibility for acts. The commission of which is considered as grave breaches of it, or more correctly, acts that are considered war crimes according to the meaning of those conventions. And that the prosecution of the perpetrators of grave violations, that is, war criminals, is a duty at all times and in any place, and this duty rests in the first place on states to take the necessary legislative measures to punish persons who commit grave breaches of the conventions. These trials may be handled by national courts in various countries, or by an international body With regard to the scope of application of individual responsibility, the agreements establish the direct responsibility of the perpetrators of these violations as well as their superiors, and include civilians and military alike, whether these military members are members of official or unofficial forces.
There is no doubt that what the agreements went to in terms of considering the human individual alone as being criminally responsible for committing grave violations, which are considered war crimes, and this is consistent with historical precedents and what international documents have decided.
The Third Part: Cyber Law and Cybersecurity in Developing and Emerging Economies:
First of all, computer networks in the Internet community in cyberspace have led to the exploitation of new technologies to carry out crimes. In addition, traditional laws have not been developed with the cyber community in mind. The main issue is to what extent this legislation is relevant to dealing with cybercrime. Traditional criminal laws describe qualifying immoral behaviors that have been developed over hundreds of years. Technological developments in information and communication technology networks have provided criminals with new opportunities to carry out attacks and fraud on the Internet. The costs incurred due to these attacks are substantial: loss of data and information, lost revenue; Losses related to the reputation and image of the damaged entity, and damage to soft and hard infrastructure. Due to the nature of cyberspace in terms of not having geographic borders, these attacks can cause immediate and invaluable devastation in a number of countries simultaneously. Numerous individuals have been involved in combating computer crime since its early years. The leader in computer crime, according to many experts in this field, including Dawn. Parker is a senior computer security advisor at the Stanford Research Institute in the United States. His journey began with computer crime and cyber security in the early 1970s. His first book on the subject was Computer Crime published in 1976. Parker was also the lead author of Computer Crime: A Criminal Justice Resource Handbook (1979), which is the first primary US federal handbook for computer-related law enforcement. In 1982, the Organization for Economic Cooperation and Development (OECD) appointed a committee of experts, the Computer Information and Communication Policy Committee (ICCP), to discuss computer-related crimes and the need for changes in legal systems. This committee made its recommendations in 1986, which states that, given the nature of cybercrime, it was highly desirable to formulate some form of international cooperation to limit and control this activity. In addition, it recommended that member states change their criminal legislation to include cybercrime (OECD, 1986). Cyber criminals have been very active in both developed and developing countries. While the developed world moved at an early stage to enact laws to deal with cybercrime, the developing world was very lenient in moving in this direction. The 1980s and 1990s saw a large number of developing countries diversify their economies from reliance on commodities. Many have chosen to leverage information technology (IT) to become knowledge-based societies. To this end, there is an urgent need for an adequate legal basis or electronic laws. Also evoking is the fact that the Internet is difficult to regulate, given that there is no single independent regulator with jurisdiction over international domains. The legal system, even in advanced economies, has always encountered difficulties in keeping pace with technological advances.
Security and Confidence in Cyberspace:
A recent study sponsored by McAfee revealed how the economic downturn is negatively affecting the security and confidentiality of vital information. The study found that information has become an international type of currency, and that cyber criminals are targeting this new form of wealth. The report concludes with the following findings: More and more essential information that is digitally transferred between companies and continents is lost; The current financial crisis will pave the way to create a tsunami of information security risks, as the increasing pressure on companies to reduce spending and reduce their size leads to weak information technology and increase opportunities for cybercriminals; Due to geopolitical perceptions, a number of countries are emerging as clear sources of threat to sensitive information and data; Cyber criminals have gone beyond the simple hack aimed at stealing personally identifiable information and credit card data, to targeting intellectual property. The term “cyberspace” was first used in 1984 in Neuromencer, a science fiction novel written by William Gibson. Description of the virtual world of computers. Today, cyberspace has become synonymous with the Internet However, cyberspace is not the only World Wide Web. In addition to the hard infrastructure offered by WWW, soft infrastructure is essential in terms of regulatory mechanisms and cyber law. The growth of e-commerce and activities in cyberspace in the past few years has created the need for dynamic and effective regulatory mechanisms to further enhance the legal infrastructure essential to the success and security of cyberspace. All of these mechanisms come All of these regulatory mechanisms and legal infrastructure come within the domain of cyber law. Internet law is important because it touches nearly every aspect of the transactions and activities related to the Internet, the World Wide Web, and cyberspace. Cyber law matters to everyone, too; The most active cyber gangs use a tried and true method of work to find web applications with major bugs; They do simple activities, like overload a badly written program with lots of input, to break into it. Usually, the intruder aims to gain control of the victim’s PC and use it to multiply the infection and perform illegal activities. Meanwhile, all important data of the victim is collected and shared. In the past few years, email, blogging sites, social media messages, search engine results, and popular web pages have become burdened with such infections. In 2008 alone, a computer security company tracked more than 15 million malicious programs spread over the Internet (Nisen, 2009). One can only speculate on the root cause of the spread of these attacks. Lately, fraudsters have been targeting smaller financial services firms and smaller banks around the world, which may not be as prepared as banking institutions And the use of cyberspace in companies, government and various societies. This widespread use of information and communication technology has accelerated the growth of cyber activities in many parts of the world. Information and communication technologies have transformed businesses, increased economic prosperity, and facilitated communication within a country and between countries around the world. The world is rapidly moving towards internet-based economic structures and knowledge societies, which comprise networks of electronically linked individuals, companies and countries in interconnected and interactive relationships (United Nations Conference on Trade and Development, 2003). Additionally, cyberspace activities promise to be the driver of a new boom in economic growth and development. To study the effects of adopting new information technologies including cyber activities, two independent schools of thought were developed over the past decade. Proponents of the first school emphasized technology diffusion models, integrating theories from change management, innovation and technology diffusion (Larsen, 1998). The second school of thought defines the impact of innovation or new technologies where innovations are the means to change the organization, either as a response to a change in the external environment or as a preventive measure to affect the environment (Rogers, 1995). The spatial implications of the communications revolution are profound Cyberspace and e-commerce have become a driving force in the globalization of the global economy, and countries that do not participate in e-commerce may endanger the competitiveness of their economies. As a result, many companies and organizations in developing countries have become an integral part of global productive supply chain networks that increasingly use e-commerce mechanisms. Through these networks, entities in more developed countries are urging developing country companies to adopt new information technologies, regulatory changes and business practices. The prevalence of internet use in developing / emerging economies is relatively low. The main obstacles are related to organizational, cultural and social factors, including the lack of regulations for handling data messages and the recognition of electronic signature; also the lack of specific legislation protecting consumers, intellectual property, personal data, information systems and networks; The scarcity of appropriate tax and customs legislation covering electronic transactions; And the absence and / or insufficiency of laws dealing with cybercrime. Technological progress today is faster (Moore’s Law) and more fundamental (breakthroughs in genetics). They are cutting costs (computing and communications) at an unprecedented rate. These transformations are driving the accelerating developments in information and communication technology, biotechnology, and the newly emerging nanotechnology. Information and communication technology includes innovations in microelectronics, computing (hardware and software), telecommunications, optoelectronics – microprocessors, semiconductors, and optical fibers. These innovations allow the processing and storage of vast amounts of information, as well as the rapid distribution of information through communication networks. Moore’s Law predicts a doubling of computing power every 18-24 months due to the rapid development of microprocessor technology. Gilder’s Law predicts a doubling of communications power every six months – an explosion in bandwidth – due to advances in optical fiber networking technologies.
Although most of these organizations are trying to reach a level of protection with computer and network security defenses, such as spam filters and fraud detection systems, this still has the potential for millions of victims.
Clear and transparent penal legislation should be developed and adopted; In other words, new laws must be enacted to deal with cybercrime. In addition, since cybercrime has no boundaries, as criminals can direct their attacks at many people, systems and institutions in any country in the world regardless of their geographical location, international cooperation between law enforcement agencies and harmonization of cyber laws in different countries is extremely important. Information and computer technologies (ICT) have also developed, as have crimes related to their use; As a result of the transition to use in addition to raising capabilities and building skills for workers in the field of cybersecurity, the Arab League adopts an Arab agreement to which member states are committed to ensuring the safety and security of cyberspace, in addition to adherence to international standards in dealing with and extracting cyber evidence, especially in terms of arrangement and mechanism, as well as control and standardization The names and criminal models related to cybercrime and adopting legislation to shed the burden of protection and insurance on companies in their relationships before individuals and encourage scientific research and innovation fields. In addition to the necessity to educate workers in all state institutions, develop their professional professional standards, and establish an infrastructure to enter the global software industry and be able to compete with the imported product; And the interest of Arab governments to stimulate investments and companies operating in this sector and cooperation between them and the government and military sectors, so that each sector benefits from the other without prejudice to the principles of confidentiality and privacy.
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