 event schedule page. Janine Schmoldt is a political scientist at the University of Erfurt in Thuringia in Germany, and in her PhD she worked on the process of legalizing hacking and when she had dealt with hacking back and she now took about legal aspects of hacking in the war. Thank you for the introduction and thank you for your interest in my topic, everyone that is listening. I am going to try in the next 30 minutes to talk about the primary status according to international law of those non-state actors involved in the Ukrainian war because in the Ukrainian war various hackers, actors, groups and collectives have got involved which of course requires classification in terms of international law. On the day of the Russian invasion into Ukraine the hacker collective anonymous declared the cyber war to the Russian president and shortly after the Ukrainian government also called in various hacker forums and via social media for people to get involved in the armed conflict became part of a so-called IT army. And Mikhail Fedorov, the Ukrainian minister for digital transformation, appealed on Twitter using these quotes to the people all around the world to defend his country in cyberspace and there is a chat that was linked to in the telegram messenger service which you can reach in this link where the Ukrainian government created for those hacking volunteers and next to detailed instructions there are lists there containing targets and these are provided and many people volunteers followed this call around the world and they are conducting cyber attacks on Russian targets, many acting in solidarity one hacker was quoted as saying I'm doing this to punish the Russians for their crimes, for their war crimes, another said I just want to help us to win and stop the death and destruction as much as I can and there are about 300,000 subscribers to this telegram group and around 400,000 volunteers globally support Ukraine digitally. Not just on the Ukrainian side though, there have been volunteers and hacker groups that have got involved on the Russian side for example the Conti hacker group has already announced retaliation measures if Russian critical infrastructure would be attacked it's not always clear to what extent the many people that said that participate to what extent they know that their actions under certain conditions have certain hurdles to overcome in terms of international law and they are subject to international law and that their actions have consequences in international law and I'm going to try to just give you a few thoughts all this is of course not regarded as final we are in an armed conflict and information could always change but due to the large number of volunteers and the large number of cyberattacks of course the classification of all these volunteers according to the categories of humanitarian international law is important and the use and bellow the law of war distinguishes between international armed and non armed conflict and as soon as there is an armed conflict all parties have to respect humanitarian international law regardless of whether this is a war of aggression or a war of defense and with the Russian invasion into Ukraine we have a war of aggression and therefore an international armed conflict between states which means that one fundamental condition in international law the which is codified in article 48 of the amendment protocol to the genetic convention relating to the protection of victims of international conflict which distinguishes between armed civilian population and armed parties this applies and the distinction between civilian population and civilian object and the military objectives is important which means that everyone involved in an armed conflict or the actors, hackers, whoever have to regard themselves either as civilians or combatants or they are going to be classified as that and with these two categories there are certain rights and obligations for example combatants for those that are immediately involved in hostilities which is legitimate they can become legitimate targets of actions of war, they could always legitimately be killed and if they should be taken prisoner they receive prisoner of war status civilians enjoy general protection against all rising for military operations and there shall not be the object of attack and I would like to first deal with the combatant category and after that I will introduce the status of the civilians and that is the first question we have to ask who is actually given the combatant status in international law the combatant status according to Article 4a of the 3rd Geneva Convention and Article 43 and 44 of the first protocol the first amendment protocol is available to the following three categories of people first members of armed forces second militias, other volunteer corps and resistance movements and those of a mass national conscription, the mass levy now in the next minutes I'm going to explain all these categories so let's begin with the first category members of armed forces who is regarded as a member of the armed forces again there is an article in the first protocol Article 43 which says that the armed forces of a party to a conflict consist of organized armed forces groups and units which are under a command responsible to that party for the conduct of its subordinates and such armed forces shall be subject to an internal discipline system which into earlier shall enforce compliance with the rules of international law applicable in armed conflict which means the question is whether the people involved in the Ukrainian conflicts which are non-state hackers actually apply or fall under this category according to current knowledge I have to stress this it seems that at least these coordinated via telegram those volunteers would not be integrated in the Ukrainian armed forces it was the Ukrainian minister for digital transformation who issued the call to get involved and become part of this group it seems that the many of the people involved are not primarily state actors and acting in solidarity which does not mean that state sponsored actors or regular IT soldiers could conduct cyber attacks or be caught off these groups and if you look at the argument that was brought forward by every central critical infrastructure will also have the involvement of secret services so you could assume that the secret services are part of this telegram group as well because and of course this group isn't completely encrypted and it's openly accessible so that would change the situation but I will limit myself to the non-state actors, hackers that voluntarily act out of solidarity and that is the aspect I'm going to follow I'm not going to talk about the secret services anymore but I would like to did want to say that this would also be an applicable situation I will now say that the IT army coordinated via telegram of course receives targets and instructions from the Ukrainian government so in that sense it could be argued that this telegram group is a paramilitary organ or should be regarded as a paramilitary organ which supports the Ukrainian forces in cyber war because from the point of view of international law it is permitted to have paramilitary units and assign them or give them combatant status as long as this is announced to the parties in the conflict in this case the Russian Federation this article does say article 43 of critical one does say that these units have to be armed and organized and they have to be under a responsible leadership and under an internal disciplinary system and all these criteria do not seem to apply to these volunteer hackers in the telegram group because everyone of course can get involved even so-called script kitties, people with little or no IT experience and to receive combatant status or uphold combatant status they would have to be trained and prepared which they are not or most of them are not so it seems that it doesn't seem to be an internal disciplinary system either so the adherence to the rules of humanitarian international law would be secured by that and the fact that there isn't a disciplinary system which from the point of international law is very relevant this fact leads to the risk of an escalation if for example an experienced hacker should attack critical infrastructure in Russia or civilian objects in Russia by mistake and cause damage or if black hat hackers use traffic systems or nuclear power stations and it could happen because the Ukrainian government did call for this in various forums to get involved in the conflict hackers were asked to get involved it could happen that they neither adhere to the distinctions in international law nor to the hacker ethics and because of this problem of attribution as well it is impossible to clearly identify an attacker in time which is why Russia could assign the responsibility for these actions to third states or use this to get involved in more aggression against Ukraine if we look to Ukraine which about 1,000 hackers and IT specialists have already joined and that is a co-founder of the Ukrainian IT and Ukrainian IT company under instruction from the Ukrainian government also called to get involved with using the words that it is now time to take part in the cyber defense of our country now for this IT army hackers were explicitly sought the past experience that were asked to apply via google docs and after a selection process these units were then divided into defensive and offensive units and the defensive units were supposed to defend the Ukrainian critical infrastructure and the offensive units were supposed to conduct offensive operations or help the Ukrainian military with digital espionage so according to these quotes these units are working close to the Ukrainian government and they do seem to be part of the core of the Ukrainian IT army so you can be assumed that these IT expert army as I will call them is part of the Ukrainian armed forces and would receive combatant status of the first category in the international law this combatant status is also applied to people that are not part of the state combat force so depending on article 4a paragraph 2 of the Geneva convention members of militias and volunteer corps or organized resistance movements can also be categorized as combatants if they meet four criteria first they need to be under command of a person responsible for their subordinates they have to carry a recognizable sign that is visible from a distance they may carry arms openly and they are conducting the operations in accordance with the laws and customs of war and this means that all of these have to be applicable for this to be qualified so let's start with the first criteria first they need to be under command of a person responsible for their subordinates and so this of course assumes a certain organizational structure and is supposed to prevent that individual people can be categorized as combatants but now there are many non-state associated hackers that are participating out of their own individual conviction many of many have said that these people cannot be categorized as combatants and can't be prosecuted as such and now the criteria of being led responsibly also says that the combatants need to be under a command and are conducting persistent operations and this does not have to have the level of usual military organizations but the law of suborganizations has said that these individual people are not sufficient for that and now this IT Army since this IT Army doesn't have a fixed command structure and many are not capable or not willing to conduct persistent military operations the first criteria does not seem to be fulfilled and all of these are to be assumed commutative according to this article they can't be given combatant status so now let's go to the last the combatant category and this Levé en masse so the concept of the Levé en masse is originated from the French Revolution when the war to use Carl van Klausiewicz's words originally was a matter of the people and the entire population military training or organization took to their weapons so for this Levé en masse the necessaries for organized war for example being under a responsible commander and they also don't have to wear uniforms or discernible signs to be combatant but in this case the combatant status can be applied to them to the population of a territory under war it's people that are taking to the weapons for themselves they are carrying their weapons openly and are adhering to the laws of war and this category also has four things for attributes that need to be fulfilled first of them it's an unoccupied territory the second one is no time for organization, the third one is spontaneity the last one is adhering to the laws of war and it says that a weaponized conflict like in an Levé en masse is only really permissible in a territory that is not under a government and as the Russian military forces at first mostly started to occupy the areas of Luhansk and Donetsk they are there are lots of people in the rest of the Ukraine that are currently not occupied and therefore they can participate in this and are not considered a Levé en masse and for the organization of a militia or a volunteer corps this is applicable to the largest part of the Ukrainian population now one could argue that the Ukraine since the annexation of the Crimea is already in somewhat of an occupation by the Russian Federation so you could assume that the population of eastern Ukraine became this military operation by Russia but the largest part of the Ukrainian land was mostly surprised by the Russian invasion and that can also be shown from the diary of an Ukrainian journalist another criterion for the Levé en masse is also that it has to be created spontaneously for the weapons when the enemy approaches so any non-governmental hacker organizations that have decided to stand by the Ukraine are fulfilling this criterion but that poses the question what does this look like with the telegram group because the Ukrainian Minister for Digital Transformation has called for it and it was organized by the Ukrainian government and golds and commands are posed there for targets to be attacked so it does appear as if this spontaneity criterion is not fulfilled but a comment to the Third Geneva Convention from 1960 clarifies that in a case like this if it is encouraged by a government that this does not oppose the creation of a Levé en masse but the exact wording of article 4 paragraph 6 of the Geneva Convention also refers to the Hague Land Convention which refers to unoccupied territory and now it appears that the concept of the population is not just the population of the citizens based on the nationality of the people because that would have been explicitly mentioned in those laws the Geneva Convention, especially the third one that is also mentioned in other parts of the law so even non-Ukrainian inhabitants of the Ukraine can be part of the Levé en masse against the Russian troops in the Ukraine but this also means that all other hackers and other participants from other countries from maybe Netherlands, Denmark or Germany are by international law and the weaponized and spontaneous resistance can also only be directed against the Russian troops to prevent this occupation so the offensive cyber attacks against on the territory of the Russian Federation are not allowed only attacks at Russian control systems and maybe cyber infrastructure that is used for the coordination of cyber attacks against the Ukraine so there has to be made a differentiation attacks can only be oriented against military goals not against general Russian infrastructure that is involved with civilian objects so everybody should be not complying with this differentiation law because that's where the fourth criteria is not really fulfilled which is the adhering to the laws of war so now if none of these people can be categorized as combatants and none of the three categories of combatants can be applied these participants would be considered as civilians so they are civilians are just people that can't be categorized as combatants so now we remember the slide with the civilians the civilians generally obtain the protection and should not be the goal of attacks but that only is applicable as long as they don't are immediately participating in attacks against or any combat so in that case they can lose their civilian protections according to the Geneva Convection but now we can consider what is an immediate participation in enemy activities so how can this be considered so there are also some things that need to be considered here so the International Committee of the Red Cross has published this thing here to properly differentiate these three things that have to be applied they must act to be likely to adversely affect the military operations of military capacity or party of an armed conflict or alternatively to inflict death, injury or destruction on persons or other objects protected against direct attack or that there must be direct causal link between the act and the harm likely to result either from that act or from a coordinated military operation of which that act constitute an integral part so now I want to cite Hans-Peter Gaffer and Nils-Micha they say that an immediate involvement with the hostilities with the enemy is only really applicable if they are involved with themselves and they also say that as long as the behavior of a civilian person is in a large part involved with the war, it doesn't really matter if they personally are actively involving in combat or just maybe involved in intelligence at least in this case people, hackers that are fulfilling these three constitutive elements they can be considered and maybe killed for their actions but one also has to state and that is where I want to get to the finish here there is a very heterogeneous group involved with the Ukraine war and all of these different levels of involvement have to be categorized very differently so that at least some Ukrainian hackers have to be considered to have combatant status others maybe the expert army maybe considered combatants through the second category and many others then are considered civilians but I also want to say that all of this can only be argued if there is proof for these individual involvements and there is also an investigation team involved that is currently collecting evidence about all of this involvement like the other states are doing as well and that is where I want to say thank you for your questions and now I am excited for your questions and comments thank you very much, it was very informative and everybody that is involved especially for them currently there are actually no questions at all maybe some people are a bit overwhelmed, oh dear it is a heavy subject I can understand that one can be of the opinion that one is a combatant in the moment and that one is involved in any way but there are different criteria for that and maybe the Lvivian mass is only applicable if I am not actually in another territory so maybe if I am in Donbass if I am secretly involved there then behind closed doors I am of course involved but according to the Geneva Convention I am still illegally involved then you are not a combatant, not part of a mass levy this term illegal combatant is of course out in the open illegitimate combatant, it has for example been used in relation to the war in Afghanistan in 2001 and that is a very problematic category and the category of an illegitimate combatant because at least if we look at state actions such as those of the US that means that people that are considered legal combatants are then not given any rights at all from any Geneva Convention on war and they are not regarded or granted any human rights if they are not treated as combatants so it has to be said that this is a very problematic category and this is a category that not many people agree with both on the international level this is very much disputed and also on the question of politics, so those that try to apply force on a legal basis they are not illegal combatants they might be civilians involved in hostilities but they are not illegal combatants because that would have very far reaching consequences I mean if you remember in this area there were a lot of German soldiers a while ago people in the occupied territory maybe there were people that were active in combat and maybe sabotaged the Germans they were executed as partisans I don't know the subject very well but I can imagine that this concept of a partisan that of course arose in the second world war and the Geneva Conventions in its amendment protocols because of the experience of the two world wars particularly the second world war they introduced the second combatant category in order to have partisans, irregular fighters, guerrillas whatever be included and assign them or grant them the combatant status and if these German people that are involved are supposed to receive combatant status because they should be regarded as guerrillas or whatever that means that they could always be killed legitimately because the armed parties involved of course they can get involved in hostilities as well and are allowed to kill how do mercenaries have to be categorized here well mercenaries and spies are separate categories in the Geneva Conventions they are not given combatant status because they have been hired specifically so in that case will they receive combatant status from international law so who actually sticks to international law? Does this even relevant for Russia? That is a very interesting question, very good one of course so what's the sense of it all? Why do we have to distinguish between combatants and civilians? Why do we have to distinguish between civilian objects and military objects? Well we see in the Ukraine war we've very often seen that certain words were used crimes of war, war crimes, crimes against humanity aggression, war of aggression and so on so in order to verify whether a crime of war, a war crime has occurred it is essential to find out whether combatants were attacked or civilian population were the objective whether civilian objects were attacked so all this is part of the question whether a war crime has been committed or a crime against humanity and so on so in that case it is very relevant and the other question or the first question who actually will keep or adhere to this law? Well the question is the humanitarian international law isn't a law that prevents or prohibits war it is a law that applies certain rules to a war that regulates a war or maybe makes it slightly more humanitarian but it doesn't prevent war which would be utopian anyway you cannot imagine a world order at least the history has shown that we haven't found a world order that can get by without war so what the humanitarian international law is trying is to apply rules to law for example the civilian category okay so the usual habits of war can they be applied to combatants in a cyber war? Yes that is an area where I am struggling myself taking for example the second combatant category the first category of the members of the armed forces is not very problematic as soon as you have a cyber command cyber unit things are clear but the second combatant category and the third does require that weapons are carried openly and that from the point of view of international law is kind of disputed the Talin manual for example says that you cannot always be carrying your weapons openly so the criterion must sometimes be abolished because how do you prove this as well in cyberspace so how can we in any way understand whether the weapons were carried openly in a very problematic category and another difficult issue that I want to point to if arms are carried openly the second category demands of the militias and volunteer corps that the members should have a very clearly distinguishable sign that they carry so that they can be distinguished from the civil population and that again leads to very practical problems because as I said how are you supposed to verify that in cyberspace how can you prove this in cyberspace so I am not just going to discuss problems of international law though I also want to point to a paragraph article 44 in the first amendment protocol and that article says that under certain conditions these two criteria to be distinguishable from a distance and to carry arms openly these two criteria or these two problem criteria that I have just mentioned could be under certain conditions not fulfilled because there might be a situation whether in cyberspace or in the physical world it is not really easily there are no unique rules to distinguish arms and these characteristics so these could be sometimes not applied but the international law has to be a tier two the rules must still apply so you must not attack civilian objects and so on so a very interesting point of view comes from this question does it matter if the cyber war can be even categorized as a conventional war so can you actually consider territories to be occupied on the internet for example that is an interesting point which leads to the question what does cyberspace actually mean or how can you define cyberspace how can you define these international law concepts as sovereignty in cyberspace I think it is important to think about these questions these are very legitimate questions but I would also like to point to the whole term of cyber war and how problematic it is because war in international law means an armed conflict a real armed conflict either an international one between states or between non international armed conflicts between states and non state atlas perhaps and the criterion of the war underlies certain rules and conflict there has to be a certain threshold of violent actions that has to be over and there has to be surpassed and this threshold isn't surpassed in the cyberspace at the moment there hasn't been a cyber attack or a singularly cyber attack independent of conventional warfare that led to any lethality so these are important questions but we haven't come to that point yet I think yeah we can't know that of course because we don't know if anyone maybe hacked the ICU of a hospital or something and maybe killed people because of that and maybe some other scenarios as in nuclear reactors and stuff like that maybe stuff like that already happened maybe it will happen there are different people that have already talked about that that might be also an interesting thing to talk about that in the breakout room later there are also two more questions open but I want to thank you very much