Because there is no convention or international legislation on how a military unit operates in the digital realm, it is still murky legal ground.
The field of cyber warfare is unregulated, which makes legal advice in this area particularly important, an Israel Defense Forces legal adviser said Monday.
Speaking at the CyberNight conference at the Shamoon College of Engineering in Be’er Sheva, Maj. A., the Military Intelligence legal adviser, described the role of legal consulting in the era of cybernetic warfare, saying that “Although the field is not regulated – and because the field is not regulated – the legal adviser plays a central role. This role is developing on the job, step by step, because there is no breakthrough convention or legislation” on the horizon.
The IDF last year appointed a legal adviser for cyber warfare, whose main task is to regulate cyber warfare activities, based on principles of international law. The military has refused to confirm whether one of this adviser’s tasks is to approve targets, as it is for most of its legal advisers in operational positions.
Many field commanders have been critical of these legal advisers’ work, said Maj. A. “Our ‘customers,’ at least some of them, perceive the jurists as interfering, rather than helping,” she said. “It’s no small challenge.”
Maj. A. said that when providing advice “for various operations,” as she put it, she often had no choice but to rely on the Law and Administration Ordinance of 1948, “which has a clause that is still relevant, which says the army is allowed to take any legal step necessary to protect the State of Israel. That’s how we operate today.”
“Of course we insert aspects of reasonableness and proportionality, and balances from the Basic Laws, certainly with regard to cyber defense, when we are asked to address issues like monitoring computers and cellphones, which raise issues of undermining privacy,” she said.
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