these rights at all times.217
In contrast, IHL was created to protect members of specific groups during limited types of armed conflicts. These include: inter-state conflicts, national liberation armed conflicts, non-international armed conflicts, and internal armed conflicts. The provisions of the 1907 Hague Convention, the 1949 Geneva Conventions, and the 1977 Additional Protocols protect the rights of identified subgroups, including combatants, POWs, and unarmed civilians.218 Yet although IHRL and IHL were originally designed to be active in different circumstances, there is a chance for cross-fertilization between these two bodies of law as they relate to cyber attacks. It is wise, after all, to look to the “totality of opinions as to the legal character of a situation.”219 A common starting point of both IHRL and IHL is respect for human values and the dignity of the human person – the core of fundamental standards which are applicable at all times, and from which no derogation is permitted.220 The point of departure for IHL is that it requires the balancing of humanity with military necessity.
The nature and scale of violence in interstate conflict has had a distinct impact on how force is controlled in IHL. The internal use of force is normally dealt with under a human rights paradigm.221 IHL, on the other hand, applies to international and non-international armed conflict. Though the relationship between the two is much more
217 As the North Sea Continental Shelf Case demonstrated, treaties can have an important impact on the development of general custom. However, the treaty in question must be law-making. According to the ICJ, that means that the rule in question must be of potentially general application, it must be sufficiently specific, and it must not be capable of attracting reservations. This principle was altered by the Nicaragua (Merits) Case in which the key question became, do customary rules apply when both states are also subject to a treaty covering the same grounds. The Court decided that: “…there is no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter ‘supervenes’ the former.” Nicaragua, supra note 185.
219 Provost, supra note 215 at 341.
220 Watkin, supra note 93.