The Hague Conventions II (1899) and IV (1907), as well as the Additional Protocol to Geneva Conventions (1977), are the only conventions where spying is expressly mentioned. In fact, they define what is a spy, and mention how spies may be captured and punished – but without prohibiting this activity itself. Several experts suggest, then, that the regime applicable to traditional espionage applied to cyber-espionage. This chapter argues that things are not that simple, and that wartime cyber-espionage between belligerents escapes regulations. In fact, these instruments were conceived to apply on land, and rely on these notions of ‘zone of operations’, ‘controlled territory’ or ‘occupied territory’. However, they do not make any sense in cyber-space, which is a fifth and different domain. States could have clarified whether and how these rules applied, but failed to do so. In fact, most States opted for the definition of minimal standards of protection – i.e., compliance with the principles of humanity, necessity, proportionality and discrimination – but ignored regulation of cyber-espionage.
This chapter defines the main notions in the book – i.e. ‘cyber-espionage’ and ‘cyber-space’ – and highlights their characteristics. In particular, cyber-espionage is distinguished from cyber-sabotage and from other intelligence-related activities, while cyber-space is often described as the ‘fifth domain’ – and hence, different from land, sea, airspace and outer-space. This difference has consequences in terms of regulation by international law, which are highlighted here.
The methods used in the book – including the approaches to treaty interpretation and the approach to sources (customary international law and general principles of law) – are explained here. Then, the concept which constitutes the bedrock of this book (i.e. ‘normative avoidance’) is explained, as well as its characteristics and consequences (i.e. the absence of prohibition or authorisation, as a result of State will).
Opinio juris ‘means that the practice in question must be undertaken with a sense of legal right or obligation’. If legislation pertaining to intelligence collection is certainly established with ‘a sense of legal right’, this chapter doubts that the implementation of this legislation – i.e., by carrying out espionage or cyber-espionage activities – is carried out with the same ‘sense of legal right’. It means that the existence of opinio juris – whether in terms of authorisation or prohibition – cannot be proved in that respect.
This chapter is conceived as a first step in the identification of specific customary rules on cyber-espionage. In fact, the ILC made clear that ‘legislative acts’ and ‘executive conduct’ had to be considered as part of State practice in this context. It explores the national laws that exist in the field of espionage and cyber-espionage, and underlines that States usually prohibit espionage against their own interests, but authorise their own espionage activities abroad. It also analyses the grounds allowing intelligence collection, and notes that – more often than not – they are not limited to the protection of national security, but also include the economic well-being of a country. Then, a challenge to executive conduct – i.e., spying activities themselves – resides in the fact that they are usually performed in secret. It is however admitted that practice must be public (or at least known to the ‘victim State’), which means that clandestine examples of executive conduct cannot be taken into account in the assessment of customary international law. The admissible examples of State practice then exclusively reside in legislative acts, which were analysed in the previous chapter. This means that only the normative power of States – i.e., the possibility to adopt laws that authorise intelligence activities abroad, but prohibit espionage directed at their own interests – may count as State practice. In contrast, the clandestine implementation of these laws – which is materialised into executive conduct and espionage activities – is not admissible.
This chapter demonstrates that cyber-espionage does not breach sovereignty. First, it argues that digital intrusions are not similar to physical trespass and – as espionage per se is not an international wrongful act – cyber-espionage does not breach international law either. Second, it disagrees with a view which gained support over the last years, and according to which damage should be taken into account to determine whether a breach of sovereignty occurred. In fact, damage is irrelevant in assessing whether a breach of sovereignty occurred, and the contrary view does not find satisfactory support in State practice. Even if this view was valid, cyber-espionage would not breach sovereignty, as it results in minimal effects. Several case studies are included.
The identification of an American First World War MIA
Jay E. Silverstein
In 2004, the remains of two First World War US soldiers from France were
delivered to the US Government for identification and burial. One set of remains
was identified and buried, and the other went into a cold-case status. In 2019,
the second individual was identified using multiple lines of evidence. The
possible individuals that could be associated with the remains were reduced
based on material evidence recovered with the remains and the spatiotemporal
historical context of the remains. The First World War personnel records then
offered sufficient biometric criteria to narrow the possible individuals
associated with the second recovered individual to one person, Pfc. Charles
McAllister. A family reference DNA sample from a direct matrilineal descendant
of the individual added statistical weight to the identification, although the
mtDNA was not a decisive or necessary factor in the identification. Due to
bureaucratic reasons, the legal identification of Pfc. Charles McAllister is
Funeral workers’ experience with ‘contagious
The extremely high death rates in northern Italy during the 2020 COVID-19
pandemic called for exceptional rules and suspension of funeral practices and
burial rites. Additionally, forms of collective burial, typical of a wartime
scenario, and mechanical methods and timing were reintroduced into the handling
of corpses. Although several academic studies have highlighted how the absence
of funeral ceremonies and ‘dignified burials’ has caused prolonged
and deep suffering for the mourners and for many of the caregivers and health
workers, few have so far focused on funeral workers. This article focuses on the
intimate, emotional and ethical experiences of a group of funeral workers in
northern Italy who handled COVID corpses and had to take the place of the
mourners at the time of burial. Through an anthropological analysis of their
oral memories, this work attempts to analyse their expressions of discomfort,
frustration, fear and suffering.