Guerras cibernéticas e a proteção humanitária de suas vítimas: entre controvérsias conceituais e o ensejo por políticas públicas internacionais

Abstract

This dissertation analyzes the possible situations of cyber warfare from the perspective of the protection of victims by International Humanitarian Law (IHL). In a trend of digitalization and global dependence on cyberspace, which may have been accelerated by the COVID-19 pandemic scenario, the vulnerabilities of the virtual environment were highlighted, showing this as a potential zone of military operations. Attacks carried out in cyberspace can have different origins, such from States, terrorist organizations, activists, ordinary citizens, etc., and can sometimes be used by governments to strategically assist traditional warfare domains and/or coadunate as “acts of war”. As a complex, uncertain and hard to monitor environment, it is conducive to violations, especially of human rights and international law. In this perspective, this research starts from the delimitation of the situations called cyberwarfare as a matter of humanitarian concern, going through the identification of concepts such as cyberspace, cyber operations, cyberattacks, etc., in an attentive way to the consequences and victimizations of these wars for legal purposes. Many States have developed offensive cyber capabilities, leading to questions about the degree of human damage offered by actions of a non-kinetic nature and the possible evaluation of these under the conventional regulation of international armed conflicts. In view of this, it is aimed to discuss to what extend cyber operations amounting to, or conducted in the context of, an international armed conflict – cyber wars – can receive the humanitarian legal treatment corresponding to its protective essence. The hypothesis is that the cyber warfare situations described here do not occur in a legal vacuum, and that the operations within its scope are partly regulated by IHL, although insufficiently, especially from an operational perspective. It uses the dialectical method to understand the phenomenon, and qualitative approach to investigate the information and interpretations regarding cyberattacks and IHL. Based on the literature review procedure and documentary research, the doctrinal discussions on events in international practice that permeates the risks of cyber operations and the possibility of adapting the precepts of jus in bello are observed, as well as the positions papers and opinions issued by States, International organizations, and by the International Committee of the Red Cross. It is concluded that humanitarian principles can offer an elucidation of the “gray zone” that underlies the States behavior in cyberspace in the context of international security. However, the potential human cost that cyber operations have taken on points out that other impasses – such as the attribution of State authorship – show the need for better guidance and adoption of international public policies for cooperation on its use, with attention to possible victims and for subsequent State responsibility.