Background paper on the legal aspects of electronic warfare
Electronic Warfare (EW) is no new phenomenon on the battlefield. To the contrary, different types of activities in the electromagnetic spectrum have been an integral part of warfare and other military activities since the early part of the 20th century - first as a means of intercepting enemy communication, later also in the shape of offensive and defensive interference with different types of weapons, communication and positioning systems, often in support of kinetic operations.
The technological development has led to a situation where most military systems on the battlefield are electric and thereby potential targets of electronic warfare. This makes the parties to armed conflicts vulnerable to enemy EW activities but at the same times creates a number of new offensive opportunities. The ongoing conflict in Ukraine serves as an illustration of the prominent – albeit in many cases invisible – role of EW. Both sides of the conflict have used EW for various purposes including targeted information campaigns against enemy soldiers and spoofing and jamming of enemy weapons systems.
Yet, up until now, electronic warfare has somehow remained outside the scope of legal scrutiny of previous armed conflicts and practically no academic work has been published in this area.
This background paper seeks to change that by providing an introduction to key EW measures and identifying relevant international humanitarian law (IHL) provisions and problems. The paper points at several issues that call for further scrutiny and clarification, including new questions about how existing lHL concepts such as attacks and weapons, apply to EW and more classical IHL problems such as the extent to which parties to an armed conflict can direct non-violent operations against the enemy civilian population.
Denmark and other states who make use of electronic warfare during armed conflicts will eventually have to address these issues in order to ensure that their activities in the electromagnetic spectrum remain in compliance with their obligations under IHL.
