[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.]
On 27 May 1941, the British battleships King George V and Rodney engaged the German battleship Bismarck, which had been previously disabled by a torpedo attack from aircraft belonging to the British carrier Ark Royal. After almost two hours of fighting, the Bismarck and her 2200 man crew were sunk. As the Bismarck’s escort ship, the Prinz Eugen, had previously detached, the shipwrecked crew was entirely dependent on the Royal Navy for rescue. The British ships Dorsetshire and Maori, acting in accordance with Article 16 of the Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, began rescue of the German crew. However, after 110 sailors were rescued a U-boat alarm was sounded, forcing the Royal Navy to break off the rescue. All but five of the remaining German crew were lost at sea.
The obligation under which the British acted to rescue the crew of the Bismarck was expanded in Article 18 the Second Geneva Convention (GCII). In an earlier post, Lt Cdr Peter Barker, RN, analyzed the extent of the obligation placed upon warship commanders to search for and collect the shipwrecked, sick, and wounded following a naval engagement. He correctly identified that the law, contained primarily in Article 18 of GCII, is ambiguous and in need of clarification. This post, the third in a series (see here and here) examining the impact of cyber on the law of naval warfare through the lens of the updated commentary to GCII, examines how the advent of cyber operations introduces an additional element of ambiguity.
Article 18 requires “[a]fter each engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.” Para 1617 of the updated commentary to GCII rightly recognizes that “Article 18(1) is among the most important provisions in the Second Convention,” and that it sets out the obligations flowing from the protections accorded in Article 12. Therefore, a detailed understanding of each element in this article is key to a proper understanding of the entire convention. Here, we look solely at the first element in the light of cyber operations.
The first element makes plain that, unlike land operations, the requirement to tend to the sick and wounded does not arise until following the engagement. This is understandable in the naval context given the increased risk of harm a commander would endure by breaking off an engagement to collect the shipwrecked, wounded and sick. Keep in mind this obligation applies “without discriminating between their own and enemy personnel.” (Para 1618) Furthermore, at the time of GCII’s drafting, naval engagements tended to be very violent, but short-lived affairs. In the case of the Bismarck, the engagement was clearly ended when the ship, her ensign never struck, went under the sea after two hours of fighting. However, for modern navies equipped with advanced long-range weapon systems, including cyber capabilities, the end of the engagement may be more difficult to discern.
In the updated commentary, para 1648 discusses the article’s post-engagement limitation, stating that “unlike in land warfare, there is no requirement to undertake search and rescue activities during an engagement.” The commentary then argues that whereas this element may limit the obligation temporally, it may expand the obligation’s material scope. It reasons that “since the particular engagement will have ceased, this may limit the extent to which a Party to the conflict may invoke security or military considerations as a justification for not undertaking search and rescue activities.” Thus, determining the exact scope of the temporal requirement is vital.
Fortunately, the updated commentary provides guidance on interpreting the temporal clause of Article 18. Para 1655 provides that “the term ‘engagement’ is ‘a battle between armed forces’, i.e. involving the use of methods and means of warfare between military units of the Parties to the conflict.” Pre-empting the question of whether the methods and means are limited to the naval forces, the commentary suggests it “covers any kind of engagement, including from the air or from land but inflicting casualties at sea.” Cyber operations are not explicitly mentioned here, so it is worth discussing whether the cessation of cyber operations, in addition to the conclusion of more traditional kinetic operations, is required to “end the engagement” and initiate potential Article 18 obligations.
First, the commentary’s suggestion that “inflicting casualties at sea” is required for an engagement is most likely poorly worded. It is easy to imagine that ships may be engaged prior to actually inflicting casualties. Prior to her own sinking, the Bismarck sunk the HMS Hood in large part by achieving the “weather gage,” gaining an advantageous position in relation to the enemy prior to opening fire. Therefore, simply because a cyber-operation does not inflict casualties, this should not signal that operations is not part of the overall engagement.
Although the commentary to Article 18 does not refer to cyber operations, they are discussed in relation to the scope of application provisions of Article 2. Specifically, the question asked is whether cyber operations alone can constitute “armed force,” making the Geneva Conventions applicable. Para 277 states that “[i]t is generally accepted that cyber operations having similar effects to classic kinetic operations” would suffice. However, para 278 recognizes the current reality that cyber operations falling beneath this threshold are legally unsettled. It is safe to say that cyber operations achieving a kinetic effect, therefore, would continue the engagement. But what of those cyber operations that effect network systems without achieving kinetic effects?
Until such time as the jus in bello develops more fully in this area, it may be necessary to leave the legal reasoning to a good faith assessment by the ship’s commander. Although this seems initially unsatisfying, it is consistent with the new commentary’s understanding of Article 18. Para 1655 states that “[w]hat constitutes an engagement in any given case will remain context-specific,” and that “those acting on behalf of the Party to the conflict, each at his or her own level of decision-making, will need to make a good-faith assessment as to the moment it becomes possible to take one or more of the measures referred to in Article 18.” Such “good faith assessments” are a common and necessary part of IHL, even if open to occasional abuse.
Given the potential for abuse, what are nations employing cyber operations as part of naval conflicts to do? Parties to a conflict still have a vested interest in ensuring that the shipwrecked, sick, and wounded are recovered and cared for as quickly as possible. The commentary once again provides a potential solution. Para 1651 suggests that opposing commanders reach a “special agreement” on the rescue of those shipwrecked in the sense of Article 6, allowing parties to fulfill Article 18 obligations without fear of attack, adding that “such an agreement may be concluded orally, between commanders on the spot.” Alert commanders will be sure to add prohibitions on cyber-attacks as part of any such agreement.
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