Legal Challenges of Cyber Space Capabilities in Light of Article 36 of 1977 Additional Protocol I

For more than four decades, Article 36 of the Additional Protocol to the Geneva Conventions has been considered as a norm for assessing the legality of new weapons. The criteria included in this article are based on weapons that were in existence at the time of its adoption. New technologies have brought new weapons which challenged the existing norms. Cyberspace as one of these technologies has capabilities that are used in software or malware forms for causing damages or injuries in the armed conflicts. The question posed here is whether Article 36 of the Additional Protocol I can regulate such capabilities under international humanitarian law? Due to the novelty of these capabilities and the difficulty of naming them as weapons, their legal review is faced with challenges in the light of Article 36 of the Additional Protocol. The review of Article 36, along with the nature of cyberspace capabilities shows that their legal assessment faces challenges such as the lack of rules and regulations that explicitly prohibits or allows explicitly the use of cyberspace, entrusting the definition of weapons to the member States of the Protocol, the definition of new weapons, the non-application of the object to computer data for the perceived cyber-weapons as a weapon, the lack of an international consensus on the virtual effects of the use of cybercriminals, the lack of regulation on the requirement for individuals and groups to produce cyber weapons for legal assessment, and most importantly, the interconnection of military and civilian networks and the possible use of cyber-weapons likely to infect critical civilian networks. Therefore, respecting the fundamental principles of International Humanitarian Law including distinction, proportionality, military necessity, and precautionary measures will be difficult.