Protocol I, Article 44 that these ‘soldiers’ did not distinguish themselves as combatants by uniform or by carrying arms openly during or in preparation for the engagement, most likely ‘combatant’ status would be stripped by a tribunal. Instead, cyber attackers captured in the IHL context would be prosecuted as prisoners of war. In particular, given the nature of cyber warfare, it may be possible to prosecute those accused under Protocol I, Article 37 provisions for prohibiting perfidy. Specifically cyber attackers disguise their attacks on state and civilian networks alike as innocent requests for information, in the same manner as a soldier who feigns civilian status would be prosecuted under Article 37(c).227
Second, the laws of war maintain a distinction between military and civilian personnel, objects and installations, and limit attacks to military objectives.228 Protocol I, Article 52.2 states that “military objectives are limited to objects which are effective contributions to military action and whose destruction offers a military advantage.”229 In other words, infrastructure that makes no direct contribution to the war effort is immune from deliberate attack. To illustrate using the Estonia case study, the fact that everything from banks to broadcasters to government services and air-traffic control was attacked signifies that this cyber attack failed to discriminate between military and civilian targets and thus, in an armed conflict, would have ran afoul of Protocol I, Article 51(4). The attacking state could counter, as NATO did when it attacked the Serbian TV towers that were used to broadcast propaganda that perpetuated genocide during the Kosovo conflict,
227 “It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.” Protocol I, Art. 37.
228 Protocol I, Art. 48.
229 Protocol I, Article 52.2.