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Full text of "Computer network attack and international law"

International Law Studies 



Volume 76 



Computer Network Attack 

and 

International Law 



Michael N. Schmitt & Brian T. O'Donnell 

Editors 




Naval War College 

Newport, Rhode Island 

2002 



International Law Studies 

Volume 76 



Library of Congress Cataloging-in-Publication Data 

Symposium on Computer Network Attack and International Law (1999 : 
Naval War College) 

Computer network attack and international law / Michael N. Schmitt & 
Brian T. O'Donnell, editors. 

p. cm. — (International law studies ; v. 76) 
ISBN 1-884733-22-0 

1. Information warfare (International law) 2. War (International law) 
3. Computer networks — Security measures. I. Schmitt, Michael N. II. 
O'Donnell, Brian T., 1964- III. Title. IV. Series. 

JX1295. U4 vol. 76 

[KZ6718] 

341.7'577-dc21 

2002002063 



Contents 



Foreword ix 

Introduction xi 

Preface xiii 

Computer Network Attack: The Operational Context 

I CNE and CNA in the Network- Centric Battlespace: 
Challenges for Operators and Lawyers 

Arthur K. Cebrowski 1 

II Technology and Law: The Evolution of Digital Warfare 

David Tubbs, Perry G. Luzwick, Walter Gary Sharp, Sr 7 

III A Different Kettle of Fish: Computer Network Attack 

Roger W. Barnett 21 

IV Information Operations, Information Warfare, and Computer 
Network Attack: Their Relationship to 

National Security in the Information Age 

Daniel T. Kuehl 35 

Computer Network Attack: The Legal Context 

V International Law, Cybernetics, and Cyberspace 

Anthony D'Amato 59 

VI Computer Network Attack as a Use of Force under 
Article 2(4) of the United Nations Charter 

Daniel B. Silver 73 

VII Computer Network Attacks and Self-Defense 

Yoram Dinstein 99 



VIII Self-Defense against Computer Network Attack under 
International Law 

Horace B. Robertson, Jr 121 

IX Computer Networks, Proportionality, and Military Operations 
James H. Doyle, Jr 147 

X Some Thoughts on Computer Network Attack and the 
International Law of Armed Conflict 

Louise Doswald-Beck 163 

XI Wired Warfare: Computer Network Attack and the Jus in Bello 
Michael N. Schmitt 187 

XII Proportionality, Cyberwar, and the Law of War 

Ruth G. Wedgwood 219 

XIII Neutrality and Information Warfare 

George K. Walker 233 

XIV Information Operations in the Space Law Arena: 
Science Fiction Becomes Reality 

Douglas S. Anderson and Christopher R. Dooley 265 

XV Fourth Dimensional Intelligence: 
Thoughts on Espionage, Law, and Cyberspace 

DavidM. Crane 311 

XVI Computer Network Attacks by Terrorists: 
Some Legal Dimensions 

John F. Murphy 321 

XVII Meeting the Challenge of Cyberterrorism: 
Defining the Military Role in a Democracy 

Charles J. Dunlap, Jr 353 

XVIII "Weapons like to Lightning" 

US Information Operations and US Treaty Obligations 

Jeffrey H. Smith and Gordon N. Lederman 375 

vi 



XIX International Law of Armed Conflict and Computer Network Attack: 
Developing the Rules of Engagement 

Brian T. O'Donnell and James C. Kraska 395 

XX Responding to Attacks on Critical Computer Infrastructure: 
What Targets? What Rules of Engagement? 

James P. Terry 421 

XXI Is It Time For a Treaty on Information Warfare? 

Phillip A.Johnson 439 

Appendix 

An Assessment of International Legal Issues in 

Information Operations 459 

Contributors 531 

Index 541 



Vll 



Foreword 



an 



he International Law Studies "Blue Book" series was initiated by the 
Naval War College in 1901 to publish essays, treatises, and articles that 
contribute to the broader understanding of international law. This, the seventy- 
sixth volume of the series, consists of papers written for the Naval War College's 
Symposium on Computer Network Attack and International Law. 

Participants in the Symposium represented a broad range of expertise in the 
rapidly developing field of information operations. Included were government of- 
ficials, operational commanders, international law scholars, technical experts, and 
military and civilian lawyers. They were brought together to examine the expand- 
ing capabilities created for military planners by the technological revolution that 
today permits means and methods of attack beyond the contemplation of war- 
fighters of the past. This Symposium focused on one of those — computer network 
attack. Although its full potential is still unrealized, it will certainly become an in- 
tegral part of the way warfare is waged. Because of its unique nature, computer 
network attack presents difficult challenges to the law. Yet, if it is to be useful to 
the operational commander, these challenges must be addressed and the issues sur- 
rounding when and how it may be used resolved. Although much work remains 
to be done, this Symposium has that process well underway. 

While the opinions expressed in this volume are those of the individual writers 
and not necessarily those of the United States Navy or the Naval War College, 
their insightful analyses make a valuable contribution to the study and develop- 
ment of the law applicable to computer network attack. On behalf of the Secre- 
tary of the Navy, the Chief of Naval Operations, and the Commandant of the 
Marine Corps, I extend to all the contributing authors our thanks and gratitude, 
with a special note of appreciation to Professor Michael N. Schmitt and Lieutenant 
Commander Brian T. O'Donnell, who not only contributed individual papers, but 
provided invaluable service as the editors of this important publication. 



RODNEY P. REMPT 
Rear Admiral, U.S. Navy 
President, Naval War College 



T 



Introduction 



he 1990's produced a worldwide, technological explosion in computers, 
information processing, communication systems, and the use of the 
Internet. The global reach of these vast and complex networks pervades almost 
every aspect of modern civilization. The Naval War College conducted a Sym- 
posium on Computer Network Attack and International Law in June 1999, to 
address such advanced technology's impact in the area of warfare directed 
through and against computer networks. The Symposium is documented in this 
volume of the International Law Studies (the "Blue Book") series. 

The Symposium was made possible with the support of the Honorable Arthur 
L. Money, Assistant Secretary of Defense (Command, Control, Communica- 
tion, and Intelligence) and the Pell Center for International Relations and Public 
Policy of Salve Regina University, Newport, Rhode Island. Their assistance is 
greatly appreciated. 

Professor Michael N. Schmitt, George C. Marshall European Center for Se- 
curity Studies and Lieutenant Commander Brian T. O'Donnell, JAGC, US 
Navy, Navy Warfare Development Command, collaborated as editors for this 
volume. Mike was a member of the Oceans Law and Policy Department, (now 
the International Law Department) before retiring from the US Air Force. Brian 
was also a member of our Department prior to his transfer to the Navy Warfare 
Development Command. Their dedication and perseverance are responsible for 
seeing this project to completion. 

A special thank you is necessary to Dr. Robert S. Wood, the former Dean of 
the Center for Naval Warfare Studies, and Dr. Alberto Coll, the current Dean, 
for their leadership and support in the planning and conduct of the Symposium, 
and the funding for the printing of this book. 

The "Blue Book" series is published by the Naval War College and distrib- 
uted throughout the world to academic institutions, libraries, and both US and 
foreign military commands. This volume is a fitting and necessary addition to the 
series as it begins its second century of publication. 

DENNIS MANDSAGER 
Professor of Law 
Chairman, International 
Law Department 



T 



Preface 



his volume of the International Law Studies series ("Blue Books") com- 
pletes work begun in June of 1999 during the United States Naval War 
College's Symposium on Computer Network Attack and International Law. 
Gathering international legal scholars, judge advocates, warfighters, and com- 
puter experts under the auspices of the Oceans Law and Policy (now Interna- 
tional Law) Department, the symposium comprehensively considered an 
emerging means, the computer, and method, computer network attack, of 
warfare. 

At the time, numerous countries, most notably the United States, were be- 
ginning to develop computer network attack (CNA) capabilities. Simulta- 
neously, there was a growing global sense of vulnerability to computer network 
attack, not only from State actors, but also terrorists, criminals, and cybervandals. 
Unfortunately, thinking on the technical possibilities of CNA was far outpacing 
that on the legal limitations to which such methods and means were (or should 
be) subject. Narrowing this gap was the symposium's purpose, and that of this 
volume. By bringing operators, technicians, and lawyers together, a fertile envi- 
ronment was created in which those responsible for designing and conducting 
CNA could acquire a more sophisticated understanding of the normative limits 
on their activities, while those tasked with considering prescriptive constraints 
became better equipped to grasp the context in which the law is to be applied. 
Simply put, the intent of both the symposium and this book was to relate the 
possible to the permissible. 

In 1999 the nature of international law's applicability to computer network 
attack was quite uncertain. Despite the increasing attention paid to the issue 
since then, much uncertainty remains. This volume addresses the most pressing 
issues. It begins with contributions describing the operational milieu in which 
the law applies, including its technical possibilities and strategic significance. The 
focus then shifts to the law. Most significant is the legal analysis of the jus ad 
bellum, that aspect of international law governing when a State may resort to 
force as an instrument of national policy. Does a computer network attack vio- 
late the prohibition on the use of force found in Article 2(4) of the United Na- 
tions Charter, and, if so, when? Can it fall within one of the two exceptions to 
that proscription — use pursuant to Security Council authorization in accordance 
with Chapter VII of the Charter and use in self-defense, based either on Charter 



Article 51 or the customary right thereto? If a State conducts a CNA against an- 
other State, can the target respond with classic kinetic force? If so, under what 
circumstances? 

Equally challenging are the jus in bello issues, i.e., those that surround the con- 
duct of hostilities. When does the law of armed conflict (LOAC) apply to CNA 
operations? Is it implicated in all cases of computer network attack or do some 
fall outside its purview? Does it present difficulties for the application of core 
LOAC principles like discrimination and proportionality or pose particular risks 
to protected persons and objects? Do lacunae exist in a normative architecture 
intended to shield non-participants from the effects of conflict? Might CNA, by 
contrast, offer possibilities for enhancing their protection? 

Complex questions regarding computer network attack extend beyond the 
confines of the jus ad bellurn andj'wi in bello. This "Blue Book" explores the key 
ones. Specific attention is devoted, for instance, to the topics of neutrality, space 
operations, intelligence gathering, and terrorism. Additionally, both the suitabil- 
ity of existing treaty law and application of rules of engagement are considered. 

Given the uncertainty surrounding the precise legal limitations on computer 
network attack, considerable interpretive play exists. Paradoxically, those States 
most capable of integrating computer network attack, or more broadly informa- 
tion warfare, into their operational capabilities, are those with the greatest vul- 
nerability to CNA. Thus, they find themselves on the horns of a dilemma — 
resist constraints on the technology and thereby heighten opportunity and threat, 
or normatively impede it and forfeit asymmetrical advantage out of concern over 
asymmetrical risk. Conversely, those States most defenseless against computer 
network attack might well find developing a CNA capability attractive because 
doing so is relatively inexpensive compared to acquiring the conventional mili- 
tary capabilities necessary to challenge those who are currently dominant mili- 
tarily. How States resolve these policy Catch-22s will determine much of the 
face of future conflict and its legal infrastructure. 

Many thanks are due in any major publishing project, a fact especially true in 
this one. First and foremost are those earned by the contributors to the volume. 
Aside from the insightful analysis for which readers are in their debt, they were 
paragons of patience and cooperation during the unfortunate delays that accom- 
panied completion of the project. Secondly, Captain Ralph Thomas (USN, re- 
tired) selflessly gave of his own time to editing this work. His name would have 
appeared on the title page, but for his excessive modesty. Professor Emeritus Jack 
Grunawalt also contributed substantial time editing and reviewing the chapters 
for their content. Lieutenant Colonel James Meyen, USMC, assisted in editing 
and brought his past experience in bringing this volume to print. Particular 



xiv 



gratitude is due to Professor Dennis Mandsager and the entire staff of the Col- 
lege's International Law Department, Ms. Pat Goodrich of the Naval War Col- 
lege Press, who served as the Press' project editor, as well as Mr. Samuel O. 
Johnson, Mr. Jeremiah Lenihan, Ms. Susan Meyer, and Ms. Joan Vredenburgh 
for desktop publishing and proofreading support. 

Hopefully, this collection of articles will assist in elucidating the intricacies of 
applying international law to computer network attack. Perhaps as important is 
the desire to have it assist in the process of determining appropriate normative 
vectors as the relevant law evolves to meet these new capabilities. CNA offers 
both promise and peril. Understanding it, and the legal environment in which it 
operates, is essential if computer network attack is to contribute to international 
stability and humanitarian protection. Regardless of the allure of CNA for those 
starstruck by its possibilities, ultimately the objective of operators and attorney 
must be to further such ends. 

Michael N. Schmitt Brian T. O'Donnell 

Professor of Law LCDR, JAGC, USN 

George C. Marshall European Legal Advisor 

Center for Security Studies Navy Warfare Development Command 

Garmisch-Partenkirchen, Germany Newport, Rhode Island 



XV 



I 



CNE and CNA in the Network-Centric 

Battlespace: 
Challenges for Operators and Lawyers 



Arthur K. Cebrowski 




IT 21 and Network-Centric Warfare 

s President of the Naval War College, I am charged with examining ad- 
.vances in technology and asking the question: "what are the implica- 
tions for the Navy and its activities in the next century?" Admiral Jay Johnson, 
former Chief of Naval Operations, has described the future as being shaped by 
three growing — and irreversible — trends: networking, greater globalization and 
economic interdependence, and technology assimilation. Critical to our under- 
standing is a recognition that these trends operate synergistically. Using the 
Internet, intranets, and extranets, networking has rapidly become a powerful 
force for global organization, one that fosters an interdependency unprece- 
dented in human history. The phenomenon is the result of extraordinary leaps in 
technological possibilities. Within the next twenty years, for instance, constellations 
of satellites will blanket the earth providing television, telephone, Internet access, 
and business opportunities to all but the furthest reaches of the world. 

Complicating the difficulties of coherent planning and systems development in 
this environment of continual flux is the fact that technology is being assimilated at 



CNE and CNA in the Network-Centric Battlespace 



an ever-increasing rate. It took nearly three generations for electric power to be- 
come an everyday part of people's lives. It took radio and television about a genera- 
tion and a half. The Internet will achieve that status within a single generation. 

Obviously, these trends have enormous implications for the armed forces. 
We are now in the midst of a revolution in military affairs unlike any seen since 
the Napoleonic Age. In that period, the practice of maintaining small profes- 
sional armies to fight wars was replaced by the mobilization of citizen armies 
composed of much of a nation's adult population. Henceforth, societies as a 
whole would, perhaps tragically, become intricately vested in warfare. The 
character of armed conflict had changed fundamentally. 

Today we are witnessing an analogous change in the character of war and 
warfare — an information revolution that enables a shift from what we call plat- 
form-centric warfare to Network-Centric Warfare. Understanding of these 
new operations remains nascent; no great body of collated wisdom has emerged 
to explain how this revolution will alter national and international security dy- 
namics. That is one of the challenges with which I charge readers, to identify and 
explore the operational and legal issues associated with the new way in which 
wars of the next millennium will be waged. 

Perhaps most notably, Network-Centric Warfare enables a shift from attrition 
based warfare to a much faster and effects-based war fighting style, one character- 
ized not only by operating inside an opponent's decision loop by speed of com- 
mand, but by an ability to change the warfare context or ecosystem. At least in 
theory, the result may well be decisional paralysis. 

How might this be achieved? The approach is premised on achieving three 
objectives: 

(1) The force achieves information superiority in terms of accuracy, 
relevance, and timeliness, thereby having a dramatically better 
awareness or understanding of the battlespace. 

(2) Forces acting with speed, precision, and the ability to reach out 
long distances with their weapons achieve the massing of effects 
versus the massing of the forces themselves. 

(3) The results that follow are the rapid reduction of the enemy's op- 
tions and the shock of rapid and closely coupled effects on his 
forces. This disrupts the enemy's strategy and, it is hoped, forecloses 
the options available to him. 

Underlying this ability is an alteration in the dynamics of command and con- 
trol. Traditionally, military commanders engaged in top-down direction to 
achieve the required level of forces and weapons at the point of contact with the 



Arthur K. Cebrowski 



enemy. However, top-down coordination inevitably results in delays and errors 
in force disposition. It is an unwieldy process that denies flexibility to subordi- 
nate commands. Combat power is needlessly reduced and opportunities present 
themselves to one's enemy. In contrast, bottom-up execution permits combat to 
move to a high-speed continuum in which the enemy is denied operational 
pause to regroup and redeploy. 

The key to this possibility is the ability to provide information access to those 
force levels that most need it. In a sense, the middle-man is cut out. Allow me to 
offer one illustration. 

Three years ago, the Navy launched an effort called Information Technology 
for the 21st Century, or "IT-21." It reflected the Navy's understanding that 21st 
Century combat power must come from warriors and platforms operating in a 
networked environment. What is required is linkage between systems that accu- 
rately provide the necessary levels of understanding of the battlespace (the sen- 
sors) and systems that link the ships and aircraft (the shooters). Therefore, 
overlying these two systems, or grids as they are referred to, must be high- 
performance information links — a complex and responsive information grid 
that empowers real-time C4ISR processes (command, control, communica- 
tions, computers, intelligence, surveillance, and reconnaissance). Although the 
full integration of the three grids — sensor, engagement, and information — 
remains incomplete, and new technologies must be developed to optimize Net- 
work-Centric Warfare, this vision is clearly the future of United States war 
fighting. 

Challenges 

One indispensable need in building our Network-Centric Warfare capability 
is adequately defending the information grids that support our capabilities. We 
know all too well that our enemies recognize the vulnerabilities posed by our 
network dependent systems. Because information and the network will be val- 
ued, it will become a target. Therefore, a core strategic goal must be to design, 
build, and operate secure IT systems resistant to computer network exploitation 
(CNE) and computer network attack (CNA). Disruption or corruption of these 
systems could have devastating strategic effects. Think, for example, where we 
would be today if the Yugoslav intelligence agencies had through CNA caused 
Allied Forces to "inadvertently" bomb the Russian Embassy in Belgrade ... or a 
hospital ... or a school. Information assurance is the sine qua non of effective, reli- 
able Network-Centric Warfare. Assurance need not be absolute . . . nothing is in 
war. But some aspects require higher levels of assurance. 



CNE and CNA in the Network-Centric Battlespace 



A troubling reality we must deal with is that most military systems obtain and 
process information from civilian systems over which the Department of De- 
fense has a lesser — or no — degree of control. These civilian systems are likely to 
be much more vulnerable to CNE and CNA than military systems because of 
public access, and may have fewer resources dedicated to their security. Along 
the same lines, our military infrastructure is dependent upon the domestic civil- 
ian infrastructure. Military supply, logistics, and routine communications sys- 
tems rely extensively on the public telecommunications grid, the domestic 
electric grid, and domestic transportation systems. Each is itself dependent on 
potentially vulnerable computer networks. 

The threats cannot be overestimated because the value cannot be overesti- 
mated. Some are new; others are merely new forms of existing threats. CNA is 
certain to be used in conjunction with traditional warfare by those who are oth- 
erwise unable to match the United States' military wherewithal. In particular, it 
is guaranteed to appeal to terrorists and rogue States. Further, we may expect to 
see computer network exploitation as a new form of an age-old threat — 
espionage. 

In facing such threats, the United States and its allies should strive for, but 
should never presume, technological dominance. When people say CNE and 
CNA technologies are warfare on the cheap, I think of the National Security 
Agency budget. But formidable capabilities can be developed and obtained rel- 
atively inexpensively. The critical capital in this industry is brainpower and 
computing power. With only a fraction of the world's population, and given 
the widespread nature of computing power, it may become difficult for us to 
maintain our present advantage. Though defensive mechanisms will constantly 
improve, so too will the offensive abilities of potential adversaries. The envi- 
ronment will be hostile and dynamic. It may be impossible to determine who 
has the advantage at any time. In the conventional world of land forces, ships, 
planes, and submarines, US intelligence agencies have a fair ability to deter- 
mine the enemy's order of battle; that luxury disappears in the world of 
cyberspace. 

The face of war is truly changing. In particular, we in the United States face a 
different reality in the effort to shape international law than faced in the past. In 
the post-Cold War era, attacks on the territory of the United States by conven- 
tional forces have not been a great concern. On the North American continent, 
separated from potential adversaries by the Adantic and Pacific oceans, we were rela- 
tively protected. With CNE and CNA, those large expanses of ocean only serve to 
provide a false sense of security. Today, the homeland threat is from any country, 
terrorist organization, or hacker behind a computer anywhere in the world. 



Arthur K. Cebrowski 



During future crises, the United States must expect significant CNE and 
CNA activity against both our military and civilian infrastructures. Though our 
forward-deployed battle systems should be impenetrable, the support systems 
reaching back to and in the United States will be far less secure. This new reality, 
of the United States homeland as a viable target, will inevitably influence our ap- 
proach to international law. The Department of Defense's interest in the shaping 
of international law in the recent past has arguably been driven by the desire to 
further our offensive interest — our interests as a shooter rather than as a target. 
Today, with the homeland at risk, a new balance between our offensive and de- 
fensive interests must be achieved. 

Many questions are presented by this new paradigm. Particular attention 
must be paid to the following: 

• Does international law require us to wait until lives are lost or property 
destroyed before we may engage in acts of self-defense? 

• What is the new context of rules of engagement? Proportional response? 
Precision? Perfidious act? 

• How is targeting affected by the fact that military systems are networked 
to civilian IT systems controlling communications, energy, finance, and 
transportation? 

• Are legal consequences of international law triggered upon the perpetrator 
gaining access to our IT systems, or do they depend upon the effects or 
tangible consequences of access? 

• Are there differing perspectives on the desired direction in which the law 
should develop among US Government agencies and among different 
nations? 

Framework of the Law 

The Hague and Geneva Conventions, and other sources of international law, 
both ad bellum and in hello, provide guidance for future conflicts. Consider the 
critical principles that regulate the conduct of nations during armed conflict: 

(1) Only military objectives may be attacked. 

(2) It is prohibited to launch attacks against civilians. 

(3) The loss of civilian life and damage to civilian objects must not be 
excessive in relation to the military advantage anticipated. 

No reasonable person would disagree with these norms; but their application 
in cyberspace attacks will place stress on commanders, targeteers, and their 



CNE and CNA in the Network-Centric Battlespace 



lawyers. There will be considerable difficulty in identifying sources and loca- 
tions of threats in cyberspace. Dual-use technology will render the ability to dis- 
tinguish between a military and civilian target elusive. And determining second 
and third order effects from information attacks will be a complex task indeed. 

Despite the difficulties in application, I am persuaded that we will be well 
served by applying the core principles of international law to information age 
warfare. We cannot, in our zest for tactical mission success, lose sight of our goals 
as a nation — to protect life and liberty, in our country and throughout the 
world. Adherence can be difficult, but our commitment to protecting the in- 
nocent, the noncombatant, reflects our national values. One commentator 
stated it with precision: "Adherence to the law reflects who we are as a nation, 
and separates the good guys from the bad guys." Therefore, the warfighters, IT 
professionals, and lawyers must all ask what steps need to be taken so the cyber- 
warriors of tomorrow can remain the good guys. 

Finally, I would caution that we should not rush to place undue controls on 
information operations before we understand the implications of such control. 
The law of armed conflict developed over centuries as nations determined what 
restrictions on their war fighting capability they were willing to accept. Time 
and experience are the brick and mortar of international law. As our understand- 
ing of the technology increases, so too will the ability of nations to best deter- 
mine the desired international norms. We must be cautious not to advocate new 
law regarding information warfare without understanding its moral, legal, and 
practical implications. 



II 



Technology and Law: 
The Evolution of Digital Warfare 

David Tubbs, Perry G. Luzwick, Walter Gary Sharp, Sr. 



Introduction 

echnology began shaping the conduct of war when the first warrior 
picked up a stone to increase his killing power during hand-to-hand 

combat. 1 Ever since, new technologies have increasingly affected the balance of 

power by: 

• leveraging existing strategies or efforts of either the attacker or the 
defender; 

• enabling new and unexpected strategic uses of existing weapons 
technology; 

• providing new weapons of increased destructive force; 

• neutralizing or mitigating the effects of enemy weaponry or strategy; and 

• providing or denying the element of surprise. 

Telecommunications and information-related technological advances, how- 
ever, have perhaps been the most fundamental in shaping warfare. Telecommu- 
nications enables command and control by providing rapid, accurate, and secure 
communications among friendly forces. Without communications, the Strate- 
gic Air Command Commander-in-Chief, General Tommy Powers, once 



Technology and Law: The Evolution of Digital Warfare 

observed, "all I would command is my desk, and that's not a very lethal 
weapon." Telecommunications has allowed the battlespace to grow from a 
grassy field to encompass outer space, the atmosphere, the earth's surface, and 
under the seas. Table 1 demonstrates how telecommunications has reduced by 
several orders of magnitude the time needed for command and control. 



Circa 


Methodology 


Time 


1775 


Message from Boston via horse and courier to a 
ship, which then sails to London and taken by 
horse and courier to the King - and return reply 


Months 


1850 


Message from New York to San Francisco via 
telegraph and the Pony Express 


Weeks 


1925 


Message from Washington, DC to Tokyo via 
high frequency radio 


Days 


2000 


Message from Washington, DC to Tokyo 


Seconds 



Telecommunications today give fighting forces incredible capabilities to be 
proactive and adaptive, and to take meaningful response. Today's warfighters 
expect and demand reliable, fast, interoperable, and protected communications. 
Telecommunications also enables the acquisition of information concerning the 
disposition, objectives, and vulnerabilities of the enemy to gain a strategic advan- 
tage, creating warfighting disciplines such as Communications Intelligence 
(COMINT), Electronic Warfare (EW), Electronics Intelligence (ELINT), 
Foreign Instrumentation Signals Intelligence (FISINT), Imagery Intelligence 
(IMINT), Open Source Intelligence (OSINT), and Signals Intelligence 
(SIGINT). High-speed communications cannot occur, however, without com- 
puters, and the pervasive use of computers in almost every device inextricably 
link telecommunications, computers, and the warfighting capability of any 
modern military force. 

Information Operations (IO) and Information Warfare (IW) compose the 
modern construct that embodies and demonstrates the dependency of modern 
warfare on telecommunications and computers. Fundamentally, IO and IW in- 
clude any activity that influences the production, modification, falsification, distri- 
bution, availability, or security of information relative to any aspect of the pursuit 
of war. These activities may be wide-ranging, even low technology, as long as 
they influence the gathering, analysis, distribution, or implementation of useful 
warfighting information. Sabotage, bombing of communications infrastructure, 
radio frequency jamming, High Energy Radio Frequency (HERF) weapons, and 
electromagnetic pulse generation are all examples of relevant, modern IW. 



David Tubbs, Perry G. Luzwick, Walter Gary Sharpy Sr. 



Offensive and defensive IW implications of new technologies must constant- 
ly be assessed by the professional warfighter. Specifically, computer networking 
technologies are becoming ever more integrated into modern commerce and 
communications; consequently, attacks on these computer networks must be in- 
tegrated into offensive and defensive warfare strategies. Relevant IW computer 
technologies include the full networking spectrum — from small, hardened, inde- 
pendent Local Area Networks (LANs) and regionally distributed Wide Area Net- 
works (WANs) to the use of the global, publicly-supported Internet. 

Enter the Internet 

Although the impact of telecommunications on warfare has been dramatic, 
the invention of the Internet has been profound. Because of its pervasive inte- 
gration into modern technology infrastructures, the Internet will very likely be 
used as either the primary or a collateral medium for any computer network at- 
tack. The commercial interests of developed nations, and even many unclassi- 
fied military functions of these same nations, are now dependent on the 
availability and reliability of Internet communications. Exploitation, elimina- 
tion, or compromise of this vulnerable asset will often be the primary compo- 
nent of a nation's IO campaign. 

The Internet began in 1969 as the ARPANET. 2 Originally the ARPANET 
was simply an experiment in highly reliable information networking. The ex- 
periment connected the Department of Defense with military research compa- 
nies and specified universities who had military research contracts. 3 High 
reliability was achieved through the development of a new set of technologies, 
collectively named "packet switching." 

In 1990, the ARPANET shut down, and was replaced by the NSFNET. 4 At 
the same time, non-DoD related commercial enterprises started to recognize the 
value of such a pervasive, distributed communication medium and they began 
connecting their previously private computer networks to the Internet, supply- 
ing new paths for all transmissions. These commercial entities brought commer- 
cial employees, suppliers, and customers to the Internet for the first time. They 
also began making a profit selling Internet access to the public. As commercial 
connections and traffic burgeoned, the NFSNET backbone handled less and less 
of the total traffic volume. While the NSFNET is not completely gone, the pro- 
cess of replacing the government's Internet infrastructure with commercial 
equivalents is well under way. 

The essential, high reliability concept of packet switching used by the 
ARPANET, NSFNET, and now the Internet, is the elimination of a central, 



Technology and Law: The Evolution of Digital Warfare 

single-point-of-failure, control and switching center. Packet switching first di- 
vides an electronic communication into pieces, known as packets. A header then 
prefixes each packet with identifying data such as: 

• the sender of the message; 

• the intended recipient of the message; 

• the subject of the communication (for e-mail); 

• the date and time of the transmission; and 

• the position of this packet in the series of packets for this message. 

Each packet is then independently routed to a computer that forms part of the 
backbone of the Internet (an Internet node). Each Internet node passes packets 
on to any computer on the network that is "nearer" to the destination identified 
in the header information than the present location. Recognize, however, since 
Internet node routing considers existing network traffic loads, and the definition 
of "nearer" is an estimate of total travel time rather than physical distance, the 
node to which a packet is routed may be physically farther away from the desti- 
nation. Packets often travel quite circuitous routes to their destination. In fact, 
the various packets of a message may travel very different routes to the destina- 
tion and will almost certainly arrive at different times. The header information 
allows the packets to be reassembled in proper order at the destination 
computer. 

Internet Vulnerabilities 

For many reasons, however, these commercial and governmental initiatives 
seldom considered security as a part of the infrastructure. The main reasons for 
not implementing greater security were capability, cost, and schedule. Security 
uses system resources and thus slows the system down or, worse from a user's 
perspective, does not permit certain features. Security is costly in terms of time, 
money, and people. It adds to the cost of the delivered capability. Security also 
lengthens delivery schedules because it takes longer to write a computer pro- 
gram without the flaws which make it vulnerable. 

Perhaps the overarching reason for not implementing security is that the pub- 
lic, industry, and government did not perceive a threat sufficient to warrant the 
extra cost to embed security into hardware and software. For example, not real- 
izing that a mountainside switch was on the rail line that the US Army uses to 
transport its main battle tanks to a seaport during hostilities, a Conrail railroad 
employee might ask, "Why would anyone want to attack a switch?" Not only is 
security expensive, it is prohibitively costly if it is considered after the fact. One 

10 



David Tubbst Perry G. Luzivick, Walter Gary Sharp, Sr. 



IBM study stated that it would cost ten times more to retrofit security into a sys- 
tem than it would if it was considered from the beginning. 

Potential vulnerabilities are also frequently overlooked by the government in 
its use of commercial-off-the-shelf (COTS) products. The rationale for their use 
is two-fold. First, COTS provides strong capabilities at reasonable cost. Not 
only do these strong capabilities enable businesses to make a profit, but in addi- 
tion the government does not bear the long-term costs of the resources to de- 
velop the products. Second, COTS upgrades and new products are more timely. 
However, the typical software product, portions of which are developed over- 
seas in countries that either are or may be US competitors, contains several mil- 
lion lines of code. Determining whether such software contains any malicious 
code is economically infeasible and practically impossible. To do so would re- 
quire a line-by-line code check as well as an understanding of how the lines of 
code interact. There is no artificial intelligence program that does this. It re- 
quires skilled people and time; indeed, more people and time than it takes to 
write the software in the first place. 

Complexity is a hallmark of modern software. There are at least 300 security 
features in Windows NT, for example, that can be turned on and off. Adver- 
saries constantly probe for weaknesses. It takes just one weakness not detected 
and resolved in one system to make all users connected to it vulnerable to exploi- 
tation and attack. Because of the trusted relationship between systems and net- 
works in our highly interconnected infrastructure, achieving and maintaining 
control over our environment is very difficult. 

The distributed routing design of the Internet means that there is no central 
point of control and thus no single-point-of- failure. This creates a highly reli- 
able telecommunications system because an enemy or accident must disable 
every Internet node to disrupt traffic. Paradoxically, this high reliability carries 
with it an associated security vulnerability — every participating Internet node 
computer is a decision-maker, with full routing information and authority and 
access to the information stream. Accordingly, access to any Internet node will 
give a hostile or criminal element access to Internet traffic. 

Also, with no centralized control, Internet entities do not naturally make use 
of information correlated from diverse sources to evaluate the intentions of their 
traffic — hostile traffic that conducts a distributed computer network attack is not 
recognized as such and thus allowed unimpeded'passage. In direct analogy to 
covert, spread spectrum communications that spread wireless information over a 
number of radio frequencies to disguise transmissions, distributed Internet at- 
tacks use coordinated connections and communications from disparate locations 
to disguise the activity or objectives of the attack. These distributed attacks 

11 



Technology and Law: The Evolution of Digital Warfare 



ultimately make use of flaws in the operating system or applications software, 
just as with any other computer "hack." Often, however, the distributed exploit 
is not obvious because individual steps are taken by different remote computers 
and each step is, in and of itself, relatively innocuous. 

Methods of Computer Network Attack 

Perhaps the greatest vulnerability of any computer system is the human ele- 
ment. Most people still use family names or other easy-to-remember passwords, or 
use more difficult passwords but write them down in an easily accessible location 
near the computer. While some hackers may attack only by the Internet, a sophis- 
ticated and persistent threat dedicated to compromising a computer system will at- 
tempt to surveil the system physically and electronically. Information gathered 
from conventional forms of surveillance and analysis is very effective in determin- 
ing which type of intrusion will be the most successful. Insiders, of course, are the 
greatest threat to any computer system — they have authorized access. 

If physical access is obtained, both information gathering and actual system 
compromise are significantly easier. Hackers may gain physical access to a com- 
pany's computers through employment as a janitor or temporary secretary — or 
they may simply be a client or customer who is left alone near a computer mo- 
mentarily. Once they gain physical access to a computer, hackers can immedi- 
ately download or corrupt information, or install sniffer software to collect it. A 
sniffer is a program that runs in the background of the target machine, collecting 
information, such as passwords or credit card numbers, during normal opera- 
tions. It generally requires a return visit to retrieve the collected information, but 
these programs may be quite small and difficult to detect. 

Physical access also allows hackers to plant conventional recording devices 
that will collect information. For example, an audio recording of an impact 
printer may allow the printed characters to be recreated. Similarly, devices 
planted in nearby offices can record an entire document when it is transmitted 
by electronic bursts to a laser printer. Hackers may also learn relevant informa- 
tion by simply collecting trash from the curbside. 

Finally, hackers may use social engineering techniques to learn information 
that compromise a computer system. Social engineering takes advantage of the 
fact that most people endeavor to be honest and helpful. Unless an enterprise has 
taken steps to educate its user base to the vulnerabilities represented by releasing 
seemingly innocuous information, social engineering gathers attack design in- 
formation very effectively. Typically, a perpetrator will call on an over- worked 
employee, either in person or by telephone, invent a plausible need-to-know 

12 



David Tubbs, Perry G. Luzwick, Walter Gary Sharpy Sr. 



excuse, and ask for relevant information. They may also offer a free magazine 
subscription in return for answering a few survey questions. Or, they may actu- 
ally send free software (which contains malicious code) to try out on a computer. 
A trained practitioner in social engineering will usually obtain at least unclassi- 
fied system details, but often passwords and sensitive information can also be 
obtained. 

Seemingly innocuous information can also be very useful, leading to ease of 
access through system configuration details, personnel information, or guessed 
passwords. Public records, such as a company's website, or public business rela- 
tionships allow a significant amount of information to be collated for use against 
the target. This information may point to a vulnerable electronic interface or an 
insecure business partner with full access. These elements of friendly informa- 
tion (EFI) may be insignificant in isolation, but can generate considerable weight 
when collected and pieced together. 

Aside from the vulnerabilities exposed by a lack of discipline and compliance 
of the user base, computer network attacks ultimately rely upon flaws in soft- 
ware, and these type of attacks are greatly enhanced in an Internet environment 
because of the robust and flexible access and communications paths that the 
Internet represents. The incongruous truth is that, in spite of a carefully crafted 
public image of total control over others' information systems, the hacker is pre- 
cisely limited to what the inadvertent holes the software design process leaves 
behind allow him or her to do. 

Flaws in software design take many forms. Since large software packages con- 
tain many million lines of source code, 5 the law of averages guarantees many 
flaws in logical construction, reduction to source lines, typographical errors, and 
ill-defined interfaces between code developed by many different groups, at dif- 
ferent times, and in different places. The hacker community lives to find and ex- 
ploit these inevitable flaws and they are very good at doing so, but they cannot 
normally create holes a priori for their own use. 6 

Buffer overflows, for example, are a common vulnerability in all software. 
They require specific knowledge of the targeted operating system, but are power- 
ful in that they allow arbitrary code (i.e., malicious programs) to be executed. 
Buffer overflows occur when data written to a pre-sized memory buffer exceeds 
the buffer's allocated space. The excess data then overwrites other memory 
areas. This can occur when a user response is longer than the software designer 
expected. Intentional buffer overflows attempt to write the perpetrator's code 
into the computer's instructions. Implementation of this exploit is routine; 
however, it must be precisely written, aligned, and sized so that it falls on a spe- 
cific memory location. 

13 



Technology and Law: The Evolution of Digital Warfare 



The majority of flaws in any software package simply represent sand in the 
gears, disrupting or halting operation in generally unpredictable ways. A large per- 
centage of these purely disruptive flaws are useful for Denial Of Service (DOS) 
attacks. The defining characteristic of a DOS attack flaw is the element of control. 
The DOS must be activated by an external action over which the perpetrator has 
control. As with any compromise of a computer system, access to exercise this 
control is crucial. Unfortunately, DOS flaws are legion, due to the pervasive in- 
stabilities in common operating system and application software packages. 

In a DOS attack, triggering the flaw simply disables the target computer in 
some way, denying the services of that machine to the owner or intended user. 
Combined with extortion or other kinetic or IW attacks that the target com- 
puter was designed to monitor or prevent, DOS can be a useful component of 
many IW attacks. In the hacker community, which is largely a socially-based 
merit system, there are very few "brownie points" awarded for DOS attacks be- 
cause they are so commonly available and easy to perpetrate. 

One method for conducting a DOS attack is to transmit malformed data, 
which is data in a format that isn't expected by the target. For example, sending a 
negative value where the programmer assumed a positive value would always be 
received. Although the result of a malformed data packet is generally undeter- 
mined, the common result is to crash the target, thus denying service. 

A small percentage of the inherent flaws in a software package are useful for 
more purposefully directed attacks. These include, in order of increasing se- 
verity: destruction of data (vandalism), viewing protected data (read capability), 
modifying data (read/ write capability), and control of the system (administra- 
tive rights or root access). Of particular importance are exploits that allow a 
normal user to increase his assigned rights on the network to more powerful 
levels. These exploits allow a hacker who gains access to the network at any level 
to make himself an administrator, with full rights to every aspect of the system 
and data. 

Hackers have the innate advantage, and they work together. The collegial, 
intellectual nature of the hacker community and of the Internet in general guar- 
antees that many hundreds of hours are spent by malicious individuals to develop 
and improve existing, published exploits. Websites, chat rooms, private elec- 
tronic bulletin board systems, and other services which cater to the malicious 
hacker number in the thousands. Hundreds of pre-designed exploits are cate- 
gorically listed by operating system and software application on public electronic 
forums (e.g., see wvwv.rootshell.com 7 ). Many more exploits exist or are in de- 
velopment in private venues, though private exploits are published coincident 
with news of the first major attack using the exploit. 

14 



David Tubbs, Perry G. Luzwick, Walter Gary Sharp, Sr. 



Defending Against Computer Network Attack 

Effective computer security demands constant vigilance by all users, system 
administrators, and commanders — and depends upon an integrated security 
program that protects against hardware, software, and social engineering at- 
tacks. The cornerstone of all computer security programs is situational aware- 
ness, training, and education. "Security through obscurity," i.e., not worrying 
about flaws buried in millions of line of code, is a very poor choice for net- 
work defense. Unauthorized access must be prevented through an active, 
layered defense, erecting sequential electronic defenses, which include intru- 
sion detection systems. This strategy allows the defender to detect intruders in 
the information-gathering stage that precedes every significant information at- 
tack. The Achilles' heel of this approach is that human operators must moni- 
tor intrusion detection systems for full effectiveness. This is a thankless task of 
reviewing scores of perfectly legitimate electronic transactions looking for the 
one obscure, innocent looking interchange that might indicate an attack. This 
time-consuming and boring task requires considerable technical skill and 
patience — a difficult combination. 

The Application of International Law in Cyberspace 

There has been no evolution of international law to govern or prohibit State 
activities in cyberspace such as computer network attack. Indeed, maintaining 
a credible ability to project military force in cyberspace is a lawful and funda- 
mentally important aspect of deterrence and maintenance of international 
peace and security. Existing international law, however, does govern the con- 
duct of computer network attack and other State activities in cyberspace. 
While these international law norms do not explicitly address information 
operations, information warfare, computer network attack, or other State 
activities in cyberspace, they do prohibit the entire range of State activities that 
causes certain effects. Accordingly, it is critically important that all State activi- 
ties in cyberspace, especially those conducted by the military and the intelli- 
gence community, be reviewed by assigned government counsel. 

Until a legal regime matures that comprehensively addresses State activities in 
cyberspace, which is highly unlikely anytime in the near future, legal advisers 
must principally conduct an effects-based analysis of international law to deter- 
mine the lawfulness of State activities in cyberspace. State activities must comply 
with the law of conflict management and the international peacetime regime, 
and, during times of armed conflict, the law of war. 

15 



Technology and Law: The Evolution of Digital Warfare 



Under the law of conflict management, all State activities in cyberspace must 
comply with the Charter of the United Nations. Unless otherwise authorized by 
the Security Council under its Chapter VII authority, Article 2(4) of the Charter 
prohibits the threat or use of force by any State against the territorial integrity or 
political independence of another State except in individual or collective 
self-defense as authorized by international law and recognized by Article 51 of 
the Charter. Customary international law requires that all use of force autho- 
rized under the law of conflict management be necessary and proportional. 

Although unlawful under the domestic law of most States, the peacetime 
regime of international law permits espionage, but the unique nature of com- 
puter network attack, which allows remote electronic access, undermines the 
deterrent value of national law. Of grave concern is that many forms of computer 
espionage may be considered a hostile act or a demonstration of hostile intent, 
thereby causing a State to use military force in response. There are many other 
peacetime norms that govern State activities in cyberspace. The 1982 United 
Nations Convention on the Law of the Sea, for example, prohibits any act con- 
ducted in the territorial sea aimed at collecting information to the prejudice of 
the defense or security of the coastal State; any act of propaganda aimed at affect- 
ing the defense or security of the coastal State; and any act aimed at interfering 
with any systems of communication or any other facilities or installations of the 
coastal State. Similarly, peacetime telecommunications treaties such as the 1982 
Nairobi Convention prohibit harmful interference with radio navigation ser- 
vices, and the 1976 INMARSAT Convention requires that its telecommunica- 
tions infrastructure be used only for peaceful purposes. 

Law of war principles embodied in the Geneva and Hague conventions as 
well as customary international law apply to State activities in cyberspace during 
armed conflict. For example, the universally accepted general principle that the 
"right of belligerents to adopt means of injuring the enemy is not unlimited" 
certainly places many restraints on the conduct of cyber warfare. Similarly, the 
principles of military necessity, unnecessary suffering, proportionality, distinc- 
tion, and collateral damage also apply. 

More detailed analyses of these and many other applicable international 
norms are provided later in this volume by other authors who are noted experts 
in international law. There are a number of issues, however, which remain un- 
clear under international law. For example, what State activities in cyberspace 
constitute a use of force prohibited by the law of conflict management? What are 
peaceful purposes? Can hostile military activities which are tantamount to a use 
of force conducted in self-defense as recognized by Article 51 of the Charter of 
the United Nations be peaceful within the meaning of the INMARSAT 

16 



David Tubbs, Perry G. Luzwick, Walter Gary Sharp, Sr. 



Convention? In modern society, the military is heavily dependent upon the ci- 
vilian infrastructure, especially the telecommunications infrastructure. To what 
extent is the civilian telecommunications infrastructure a lawful target because a 
military relies upon it in some way for command and control or computer net- 
work attack? What about the Internet nodes of a State that is not a party to a con- 
flict; is its telecommunications infrastructure a lawful target? Is a cyberattack 
against the critical infrastructures of an "undefended" city prohibited by the 
Hague Convention even if no physical destruction ensues? How do we regulate 
computer espionage to avoid the appearance of a hostile act or a demonstration 
of hostile intent without outlawing espionage completely? A legal review of 
these and the many other unresolved issues must be conducted in the context of 
the fundamental principle of international law and sovereignty which provides 
"that which is not prohibited is permitted." Legal advisers must also understand 
and embrace the Internet technology of binary mathematics and electronic cir- 
cuitry which forms the foundation of digital warfare. 

The Future of Technology, Law, and Warfare 

While the future of technology, law, and warfare is uncertain, it is very clear 
that technology will continue to drive profound changes in the nature and con- 
duct of 21st century warfare, and that international law, by its very nature, will 
always lag behind. The international community does not yet understand, much 
less agree, on how existing international law applies to State activities in 
cyberspace. An international consensus on a comprehensive regulation of State 
activities in cyberspace is very unlikely, and States must continue to regulate 
these activities by their own domestic laws and rules of engagement. In crafting 
their domestic norms, States must remember, however, that State practice will 
shape the evolution of international law that will in turn permit or prohibit fu- 
ture activities in cyberspace by all States. 

The unintended consequences of computer network attack are also uncer- 
tain. For most, the notions of computer network attack and digital warfare con- 
jures up visions of precision warfare, but these visions are far from reality. 
Information systems are constructed from flawed building materials. All operat- 
ing systems, software applications, and hardware architectures contain many 
flaws that can be exploited by computer network attack — and the variations on 
how they can be combined represent almost an infinite number of vulnerabili- 
ties and unintended responses to unauthorized intrusions. Unauthorized access, 
such as during a computer network attack, therefore, has a relatively high proba- 
bility of inducing instability into the target system. Without a complete and 

17 



Technology and Law: The Evolution of Digital Warfare 



accurate modeling of the target system, the uncertainty in predicting the exact 
primary, secondary, and subsequent order effects of a computer network attack 
is large. Obviously estimates of distinction, proportionality, and collateral dam- 
age are very tenuous when predicated on uncertain estimates of effects. 

An exact determination of the uncertainty of a computer network attack is 
calculable, given complete information about the information systems involved, 
but such a calculation would become quickly outdated due to the fast pace of 
software development. Reasonable estimates that account for incomplete infor- 
mation are also possible, but these estimates are even more difficult and 
short-lived since minor changes to a system configuration can have dramatic ef- 
fects on the results of a particular attack. Estimating the effects of a computer net- 
work attack will continue to be risky and inaccurate until the operating systems 
and applications, for the attacker as well as the target, achieve a reasonable mea- 
sure of stability. Scenarios where a computer network attack on a military infor- 
mation system disables a linked civilian system that controls water purification, 
for instance, are very plausible. 

The Information Environment (IE) is the new battlespace of the 21st century. 
The IE is the interrelated set of information, information infrastructure, and in- 
formation-based processes. Information is data, information, and knowl- 
edge — and the information infrastructure is the hardware, software, and 
transport media used during information-based processes created when storing, 
manipulating, and transferring information. Denying, degrading, or destroying 
a select subset of the IE can have significant repercussions in one or more critical 
infrastructures and can be more effective than physical destruction. Manipula- 
tion of the IE now offers the potential to obtain political and military objectives 
without the use of kinetic weapons. Indeed, control of the IE may be far more 
effective than physical attack, and may be able to prevent future hostilities. 

States must develop a national strategy to defend their own IEs and affect the 
international IE to successfully attain political and military objectives. Such a 
strategy requires breaking with traditional organizing, equipping, training, and 
warfighting strategy. Political support, along with appropriate planning guid- 
ance, strategy, and force structure, must be developed. The philosophical in- 
sights and intellectual understanding of such a national IE strategy are in their 
nascent stages and need further development. 

Existing information systems have not begun to scratch the surface of the ca- 
pabilities for self-aware behavior. In ten years, these systems will make practical 
use of what we have learned in both neural networks and artificial intelligence to 
model human thinking more closely. This means both that our information sys- 
tems will modify their own behavior in response to past experience and that the 

18 



David Tubbs, Perry G, Luzwick, Walter Gary Sharp, Sr. 



larger the network, the more effective this behavior will be. They will be capa- 
ble of detecting and correcting defects in their own hardware, minor imperfec- 
tions in their own software codes, damage due to neglect, vandalism, or war, and 
obvious errors in the judgment of their operators. 

For information warfare, the potential of self- aware behavior is overwhelm- 
ing. We could, for example, teach a distributed information system to gather in- 
formation from a target network exactly as a series of a certain number of 
legitimate users would use the system, i.e., their intrusion detection software 
will not be able to distinguish between the two events. Or the attack could 
model an attack on the enemy network from 600 saboteurs in 200 locations, 
causing the target network to disconnect vast subnets. This would exacerbate 
the degradation of the target network's self- aware functions, denying it the in- 
formation it needs to discriminate further fictional attacks from real events (the 
speed and accuracy of a neural net is directly related to the size of the net). 

On the battlefield, individual warfighters will be connected to vast informa- 
tion resources to enable effective decision-making and coordination of troops. 
Forward observers will be automated and equipped with sensors that dwarf a hu- 
man's information collecting hardware. Indeed, humans may not need to in- 
habit the kinetic battlefield at all. 

Defensive capabilities will reap similar advantages, at some point pitting their 
software and processing skill against ours. With rapid software and hardware de- 
velopment likely to continue, a quickly escalating arms race in technology 
weapons is possible. Lagging behind in this race might be as deadly as losing an 
arms race in kinetic weapons, but the time scales will be much, much shorter. 

The United States currently enjoys a distinct technological advantage. The 
most likely scenario is that this will continue and technical developments will 
generally tend to open the disparity in capability between us and our enemies, to 
our favor. Commercial development pressures will drive this naturally, although 
military applications need to be carefully identified as new technologies present 
new offensive and defensive possibilities. This creative ruminating is not trivial 
and must not be cursory — the selection process that produces technologists en- 
sures that they are creative. The weapons they design will exploit non-obvious 
niches in new technologies. 

At present, however, the instability of present operating systems and our 
dependence upon them, paradoxically leaves us more vulnerable to information 
warfare and computer network attack than less technically developed nations. 
Malicious code, HERF weapons, EMP, and other less sophisticated attacks 
could wreak great havoc in our technological society. This "Blue Book," and 
the conference on which it is based, is a tremendous step toward an international 

19 



Technology and Law: The Evolution of Digital Warfare 

understanding of the implications of information technology on a State's na- 
tional security, the information environment, and the underlying international 
legal issues. 



Notes 

1. Stephen Bull, An Historical Guide to Arms & Armor 7 (1991). 

2. Advanced Research Project Administration NET work — later renamed D ARPANET: 
Defense Advanced Research Project Administration NETwork, although ARPA had always been 
a Department of Defense entity with military objectives. 

3. M.L. Young and J.R. Levine, Internet FAQs: Answers to the Most 
Frequently Asked Questions 22-24 (1995). 

4. National Science Foundation NETwork. The NSFNET was initiated to handle the 
increasing volume of traffic as the ARPANET became more and more popular. NSFNET also 
solved a number of technical headaches inherent in the original design of the ARPANET, and so 
eventually the ARPANET was phased out completely. 

5. The Windows NT™ operating system, for instance, contains roughly fifty million lines of 
source code. 

6. A notable exception is, of course, when the hacker works for a software development 
firm — a not infrequent case. Even in this case, inserting a "backdoor" providing access to the 
software after deployment is not trivial. The software development enterprise has layers of testing 
in place to catch such defects. While these layers of testing are far from foolproof, such a hacker has 
a slightly lower than even chance of success. Failure typically results in termination of employment, 
making repeated attempts statistically meaningless. 

7. These sites are free and are extensively cross-referenced. The primary belief that motivates 
the maintainers of these sites is that full disclosure of all exploitable flaws is the only way for 
intelligent system administrators to ensure robust information systems security. 



20 



A Different Kettle of Fish: 
Computer Network Attack 



Roger W. Barnett 



he Information Age has dawned, and it is maturing rapidly. How re- 
markable the celerity and scope at which the entire world is becoming 
one far-flung network! As one pundit observed, "To a first approximation, all 
computers in the world are connected to each other." Indeed, when one con- 
nects to the Internet, he or she is linked globally to all other computers on the 
Internet. In 1999 there were nearly 200 million Internet users worldwide; by the 
year 2003, at least another 100 million are expected to be on line. 

Some have suggested that, in terms of technological progress, these are revolu- 
tionary times. Yet, as long ago as the decade after the orbiting of Sputnik, Soviet 
authors wrote about a "Revolution in Military Affairs." The instrument that ef- 
fected this particular revolution was the marriage of the intercontinental range 
ballistic missile with the nuclear weapon warhead. This combination meant that, 
for the first time in history, strategic attacks (attacks with the potential to alter the 
course and outcome of a war, as opposed to an attack with the potential to alter the 
course and outcome of, say, a battle, which would be at the tactical level) could be 
conducted at any time against any target in the world. This was genuinely revo- 
lutionary, and had to be addressed by developing a wholly new set of concepts, 
doctrines, and international rules. Today, the close-coupling of societies by 
information technologies is beginning to portend the same effect — potentially a 



A Different Kettle of Fish: Computer Network Attack 



strategic effect — but without the necessity for nuclear weapons or long range 
missilery. Just as the Soviets noticed something revolutionary going on, this is 
also a major occurrence, but it is also a different kettle offish. 

While the Soviet "Revolution in Military Affairs" offered to produce stra- 
tegic effects, the means to accomplish this end was centralized in the hands of 
the State. For good or ill, the power was concentrated, and it was a power that 
could be acquired only with significant technological effort and at great ex- 
pense. Today, the potential for a strategic information systems attack has become a 
reality. 1 

What makes this so remarkably different is not only the effects that might be 
produced without the use of nuclear weapons, but also the diffuse availability of 
this power. The entry costs to conduct a strategic information attack are insignif- 
icant — an inexpensive computer, some easily obtainable software, and a simple 
connection to the Internet. In theory, anyone just about anywhere can gain ac- 
cess and mount an information attack that might bring about devastating results. 
Moreover, using this ubiquitous capability, strategic effects might be wrought 
with little physical damage and no loss of life. Conceivably all national infra- 
structural components could be vulnerable: telecommunications; food, water, 
oil, gas, and electrical distribution; health care; education; finance; industry; and 
also military facilities, networks, command and control, and personnel. 

Even more disconcerting, such strategic attacks can be conducted anony- 
mously. Heretofore, the concentrated power of long-range nuclear weapons 
was in the hands, and under the responsibility and accountability of, govern- 
mental officials. Military means, especially those with strategic consequences, 
were tightly and centrally controlled. Time, technology, and the change in the 
way in which societies create wealth have changed all that. Thomas Czerwinski 
has cautioned that "As the 'combat form' in any society follows the 'wealth cre- 
ation form' of that society, the wars of the future will be predominantly, but not 
solely, 'Information Wars.' " 2 

Now nameless, faceless actors can potentially attain strategic objectives; and 
the possibility exists of not being able to identify the perpetrators and hold them 
accountable. Because of the diffusion of power, the anonymity and ease of ac- 
cess, the speed at which attacks can be mounted, and the paucity of observable 
preparation (resulting in little or no warning time), control or regulation of 
cyberspace attacks, as might be attempted by legal means, seems almost beyond 
comprehension. Yet, efforts must be made, for the stakes are high. 

To ascertain at what points legal instruments might be effective either in pre- 
venting attacks or in mitigating their consequences, the ingredients of an attack 
can be factored into five parts for analysis. 

22 



Roger W. Barnett 



• Objectives to be sought. These could range from overturning the ruling 
political power to the infliction of sheer pain. 

• Actors with motivation. Motivations might be political, anarchic, criminal, 
monetary, or merely to vandalize. 

• Inexpensive, easy-to-use tools. Low expense and ease of attaining powerful 
tools increase the potential for their use. 

• Access to a variety of targets almost too numerous to count. A key route of 
access would be via the Internet. 

• Wide-ranging results, from mere copying of information (no direct injury 
from the act) to contaminating the water supply of a large metropolitan 
area, to sparking economic chaos, to causing the release of a weapon of 
mass destruction. 

Recognizing that these categories are interdependent, it is nevertheless useful to 
break each of them out for individual discussion. 

Objectives 

Access to information empowers. Someone who has the ability to review and 
change a pay schedule or an academic grade, for example, wields significant 
power. A person with access to private or classified information can use that in- 
formation in a variety of ways, not all of which are beneficial or lawful. If the 
stakes are high enough, the temptation to copy, or alter, or pilfer information 
can be very strong. 

Objectives for obtaining, altering, or obliterating information can vary, de- 
pending on the kind of information, its potential uses and value, and the ease in 
accessing it. Conceivably, governments could be toppled by a malefactor with 
the right information. The sheer volume of information flow — in the form of 
e-mail, financial transactions, and telephone calls, for example — means that if 
only a very small fraction is corrupted, intercepted, or stolen, enormous prob- 
lems can ensue. Each day over a trillion dollars circulates electronically in the 
global currency market, and in excess of nine billion e-mail messages are sent in 
the United States alone. An error, loss, or siphoning rate in the currency market 
of only one one-hundredth of one percent (.0001) equates to more than 
$100,000,000. Numbers (and tolerances) such as these border on the incompre- 
hensible. Consider the potential damage that could be wrought by an unautho- 
rized person changing a bank's financial records by a simple instruction such as 
"change all sevens to ones." Or even more deviously, change every third seven 
to a one. Or, perhaps, change the first one thousand sevens to ones, change the 



23 



A Different Kettle of Fish: Computer Network Attack 



second two thousand fours to twos. Such instructions are trivial for someone 
with very modest computer literacy to compose, but the difficulty and cost to 
repair the damage could be significant. 

Information has the special property that it can exist in more than one place at 
one time. This is at the same time an advantage and a disadvantage; for example, 
decision makers can view and act on the same information simultaneously, even 
though they are widely separated by distance. On the other hand, it can permit 
the compromise of valuable or sensitive information without its owner's 
knowledge. 

Information also frequently has an element of timeliness; that is, information 
can be so perishable that it can have great value at one point in time and be 
worthless at a later — or conceivably even an earlier — time. Thus, the value of 
information depends on its availability, its integrity, and its confidentiality. 

For those who would seek to attack the information of others, these would be 
the targets. Availability includes the loss of information, delay in its receipt, and the 
loss or delay of an information service. Integrity includes unauthorized changes in 
the information or the introduction of false data. Confidentiality means the 
unauthorized access to data or information that has some requirement for protec- 
tion or privacy. In some cases, no damage to the data will result from exploitation. 
The data might be undisturbed, but its revelation could have severe repercussions. 

An additional complication is presented by the medium of "cyberspace." Be- 
cause cyberspace is viewed as a virtual realm, it carries an aura of unreality. From 
his bedroom, a young hacker connects to the Internet, travels thousands of miles 
in seconds, enters the computer system of a large corporation, and views the data 
contained on storage devices there. His unauthorized presence may or may not 
be detected. If he destroys data on the storage device, by a mere series of key- 
strokes on his keyboard, there is no fire, smoke, or noise. The information just 
disappears. The tactile experience, the physical environment in all its manifesta- 
tions, the sense of personal danger, and the resultant damage from such an activ- 
ity are unreal, truly virtual. They are far removed from an actual, corporal 
breaking and entering, but the transgression is the same. 

Have any cyberspace events taken place to the extent that severe conse- 
quences, either monetary loss or damage to national security, resulted? To date, 
there is little evidence to support such a claim, but it is well within the realm of 
the possible. One might not know whether such attacks have taken place, in 
part, because if any institution suffers a loss, it has great incentives to suppress that 
fact. Confidence of investors or customers can be greatly undermined by such a 
revelation. Moreover, the fact that an institution was attacked and suffered losses 
can inspire additional attacks on other institutions. But central to the issue of 

24 



Roger W, Barnett 



objectives, one must analyze what gain might accrue to the perpetrator of such 
acts. If the objective is sheer malice, or to inflict pain with no anticipation of 
gain, then protection is at the level of maximum difficulty. The same is true of 
terrorism, for example. If terrorists have an agenda or an objective, one seeks to 
deter them by withholding the objective. In effect, they are told, "You might be 
able to injure me, and to inflict great pain on me, but you cannot attain what you 
seek — so you might as well not even make the attempt." If, on the other hand, 
terrorists intend only to cause pain and suffering, and they place little or no value 
on their own lives or prospects, then they become exceedingly difficult to deter. 3 

If, rather than wanton damage, the objective is monetary gain, political 
change, or competitive advantage, it is helpful for the defender to try to antici- 
pate or envision the objectives of the perpetrator. In that way, the defender can 
erect active or passive defenses to try to thwart an attack or to minimize or other- 
wise manage the consequences of a successful attack. 

Actors 

Closely coupled to the question of objectives is the issue of actors. In informa- 
tion attack it has become a simple matter for anyone, virtually anywhere, to gain 
unauthorized access to information. This means, literally, that any modestly lit- 
erate person who has minimum capabilities in computing can be a participant in 
information attack or exploitation. From the lowest level (drawing moustaches 
on billboards or spray painting subway cars) to the highest (gaining unauthorized 
access to the information held by a large corporation or government), the differ- 
ence in capability of the actor is remarkably small. This means that children can 
be recruited and taught the necessary skills; indeed many of the identified "hack- 
ers" have been minors. 4 The entry fee, in short, is low in terms of capability, and 
tends to be low in terms of age as well. 

As a special commission reported to the President of the United States: 

Like any new tool in previous eras, computers can be used by those who prey on 
the innocent. International narcotics traffickers now routinely communicate 
with each other via computer messages. Hostile governments and even some 
transnational organizations are establishing cyber- warfare efforts, assigned the 
mission of crippling America's domestic infrastructure through computer attacks. 
Hackers destroy cyber-property by defacing homepages and maliciously 
manipulating private information. Pedophiles stalk unsuspecting children in 
computer chat rooms. Individuals post homepages with instructions to 
manufacture pipe bombs, chemical weapons, and even biological agents. Crooks 

25 



A Different Kettle of Fish: Computer Network Attack 



break into business computers, either stealing funds directly or extorting 
payments from companies anxious to avoid more expensive disruption. 
Disgruntled employees, with valid access to their companies' system, can take 
steps to disrupt the business operations or steal proprietary, sensitive, and financial 
information. And our personal data is at risk of being unlawfully accessed and read 
by malicious individuals, without our knowledge, as it resides on or traverses 
communications and computer networks. 5 

No longer is espionage something undertaken exclusively — or, perhaps, 
even primarily — by professional spies in highly adversarial countries; the field is 
now open to rank amateurs on a global basis, with or without political, cultural, 
or religious axes to grind. No longer is sabotage reserved to anarchists, social ac- 
tivists, or well trained enemies of the State; the electronic environment of 
cyberspace makes it widely available for the doing. Actors may perform their ac- 
tivities in singular privacy, without personal mentoring and a modicum of in- 
struction. Alternatively, they may be organized and scripted by 
anti-government groups, or as part of a government or industrial team. Accord- 
ingly, security forces guarding against electronic attack or exploitation will have 
great difficulty in "profiling" potential perpetrators. 

State-supported acts are in a class of their own. As noted, however, they 
might well be indistinguishable from mere "hacking." The non-governmental 
culture that underwrites computer network attacks (CNA), however, knows no 
international boundaries, and it tends toward alienation and hostility. Here is an 
excerpt of the "Hacker's Manifesto," in which can be heard echoes of the rav- 
ings of the infamous Unabomber: 

This is our world now . . . the world of the electron and the switch, the beauty of 
the baud. We make use of a service already existing without paying for what could 
be dirt cheep [sic] if it wasn't run by profiteering gluttons, and you call us 
criminals. We explore . . . and you call us criminals. We exist without skin color, 
without nationality, without religious bias . . . and you call us criminals. You build 
atomic bombs, wage wars, murder, cheat, and lie to us and try to make us believe 
it is for our own good, yet we're the criminal. . . . Yes, I am a criminal. My crime is 
that of curiosity. . . . My crime is that of outsmarting you, something that you will 
never forgive me for. I am a hacker and this is my manifesto. You may stop this 
individual, but you can't stop us all . . . after all, we're all alike. 6 

Among the most feared and powerful of all actors in attacks on information 
are insiders. In part, this is because the strength and integrity of a network is 

26 



Roger W, Barnett 



largely a matter of perception. From an outsider's point of view, a network 
might appear very robust. It has many nodes, many links, many alternatives to 
routing information, and good security. To an insider who knows the network, 
there might appear to be a substantial number of vulnerabilities. An outsider is 
reluctant to attack what seems to him to be a very difficult, very adaptive target. 
The insider, however, knows the system and its potential weaknesses. This is 
why the insider is of such high concern — he's inside the firewall, inside the secu- 
rity. His trustworthiness and reliability then ascend to the level of pivotal issues. 

Motivation of actors must be viewed as a major variable in the process. For 
one who acts from the outside, the rewards might be monetary, political, reli- 
gious, or perhaps just personal satisfaction. For an insider, the motivations might 
be much less consequential. Changes in workplace environment or relation- 
ships, revenge, malicious acts at the behest of an outsider, the challenge, sheer 
curiosity, or even a misguided good-faith effort to fix a problem can all stimulate 
an insider to action that could be exceedingly damaging and costly. 

Because "cyberspace" has been so ill-defined, because it was initially comman- 
deered by the youth of the world, because it is so easily accessible, and because it is 
global and instantaneous, almost anyone can become an actor within its confines. 

Tools 

On a daily basis, new tools for attacking networks are honed and made avail- 
able via the Internet to anyone who wants them. Many are free merely for the 
downloading. According to Bruce Middleton, an expert on the subject, "The 
most popular of these tools fall into several categories: password crackers, port 
scanners, war dialers, general network vulnerability scanners, and intrusion de- 
tection systems." 7 

Because many firewalls and other security devices require a password to 
breach them, password crackers attempt to determine what the user's password 
might be. It is a well-known fact that the most widely used password, owing to 
the fact that employees are lazy and do not understand (or often care about) secu- 
rity, is "PASSWORD." Easy-to-crack passwords involve variations of people's 
names, their addresses, their pet's names, or the names or nicknames of their 
favorite sports team. If a match fails on these easy passwords, the password 
cracker employs a dictionary that very rapidly tries words until the password 
is discovered. In general, the password cracker can no longer just try each poten- 
tial word at the locked door (firewall) of the target site, for now most sites can 
detect such efforts and will not accept password attempts beyond about three. 
So, some other method must be used, such as locating the password file on the 

27 



A Different Kettle of Fish: Computer Network Attack 



victim's computer and trying to decrypt it, or catching passwords "on the fly" 
with a "snitFer." 

Pari scanners "knock on the door" of networks to see if they are unlocked. 
Many, many computers and services connected to the Internet, for example, 
have no protection against penetration. Port scanners try to find these unpro- 
tected ports and then gain access to information on the victim computer. Many 
of the "no need to dial up" or "on all the time" services (Integrated Services Dig- 
ital Network (ISDN) and "Web TV" fall into this category) can place their users 
in a vulnerable position if they do not include security services. It is the function 
of port scanners to find those unsecured computers. "Strobe" is an example of 
such a scanner. It "attempts to locate and build a picture of all ports on one or 
several hosts in a given network, using what is considered a very efficient algo- 
rithm that helps optimize speed. It then displays all those ports that are turned on, 
or 'listening.' " 8 Strobe is available on the Internet at no cost. 9 

War dialers organize banks or networks of modems to dial the same number 
repeatedly in order to overload it or keep it from receiving other signals, or they 
might dial many numbers rapidly in the hope of detecting a computer on the 
other end. These can be very effective in situations where computers are net- 
worked but also employ modems to the outside via phone lines. Often comput- 
ers are manufactured with internal modems installed. Users then merely have to 
connect their computers to a telephone line, and they can operate in cyberspace 
outside the firewall that protects the network to which their computers are also 
attached. Because users can connect to the outside directly, the "outside" can 
also enter their computers via this route, around the firewall or protective de- 
vice. War dialers are easy to implement, and can be used with devastating effects 
on a targeted site. 

General network vulnerability scanners. Perhaps the most famous of these is 
SATAN, the Security Administrator's Tool for Analyzing Networks. It has 
many functions and has been available, also for free, literally for years on the 
Internet. SATAN analyzes a target computer system and provides the user a de- 
tailed report on the kind of equipment, directories, and hosts supported. 

Intrusion detection systems help secure computer systems. They have a variety of 
bells and whistles, some of which are detailed record keeping of attempted intru- 
sions, alerts to operators of attacks, and recommended actions to correct the 
problem or even to respond. In this class one finds ISS SafeSuite, Cisco Net 
Ranger, NAI CyberCop, and AXENT Technologies NetRecon, to mention 
only a few. 

In addition to these technical tools, there are also "social tools" commonly in 
use. For example, there is "dumpster diving," where trash is screened for 

28 



Roger W. Barnett 



passwords, file information, personal information, and any other data that might 
aid a perpetrator's efforts. This is a common procedure; it has been used for 
years, and it still pays off Often, armed either with the material gathered from 
dumpster diving or sheer gall, a potential attacker will then engage in what has 
become known as "social engineering." For example, a telephone call will be 
made to an employee in the targeted organization and a misrepresentation made 
in order to elicit the compromise of protected information. A common ruse is to 
call an employee and pretend to be an "information management systems trou- 
bleshooter." The employee is told that the system is experiencing difficulties, 
and that the employee's system name and password are needed to fix the prob- 
lem. For many of the same reasons that "password" has the highest frequency of 
usage, this technique is very often successful, because it takes advantage of the 
propensity of people to pay little attention to security. 

Peter G. Neumann has summarized quite succinctly the potential for "com- 
puter misuse," in the table reproduced below: 



Mode 


Misuse type 


External 




Visual spying 


Observing of keystrokes or screens 


Misrepresentation 


Deceiving operators and users 


Physical scavenging 


Dumpster-diving for printout 


Hardware misuse 




Logical scavenging 


Examining discarded/stolen media 


Eavesdropping 


Intercepting electronic or other data 


Interference 


Jamming, electronic or otherwise 


Physical attack 


Damaging or modifying equipment, 
power 


Physical removal 


Removing equipment and storage 
media 


Masquerading 




Impersonation 


Using false identities external to 
computer systems 


Piggybacking attacks 


Usurping communication lines, 
workstations 


Spoofing attacks 


Using playback, creating bogus nodes 
and systems 


Network weaving 


Masking physical whereabouts or 
routing 



29 



A Different Kettle of Fish: Computer Network Attack 



Pest programs 


Setting up opportunities for further 

misuse 


Trojan horse attacks 


Implanting malicious code, sending 
letter bombs 


Logic bombs 


Setting time or event bombs (a form 
of Trojan horse) 


Malevolent worms 


Acquiring distributed resources 


Virus attacks 


Attaching to programs and replicating 


Bypasses 


Avoiding authentication and authority 


Trapdoor attacks 


Utilizing existing flaws 


Authorization attacks 


Password cracking, hacking tokens 


Active misuse 


Writing, using, with apparent 
authorization 


Basic active misuse 


Creating, modifying, using, denying 
service, entering false or misleading 
data 


Incremental attacks 


Using salami attacks 


Denials of service 


Perpetrating saturation attacks 


Passive misuse 


Reading, with apparent authorization 


Browsing 


Making random or selective searches 


Interference, aggregation 


Exploiting database inferences and 
traffic analysis 


Covert channels 


Exploiting covert channels or other 
data leakage 


Inactive misuse 


Willfully failing to perform expected 
duties, or committing errors of 
omission 


Indirect misuse 


Preparing for subsequent misuses, as in 
off-line preencryptive matching, 
factoring large numbers to obtain 
private keys, autodialer scanning 



Source: Peter G. Neumann, Computer- Related Risks (New York: Addison- Wesley Publishing 
Company, 1995). 

Targets 

The variety of objectives, the multiplicity of actors, and the great array of 
tools together are a clear indicator that the target set is large and rich. Targets 
range from very specific systems, persons, or infrastructures that are linked 
tightly with a perpetrator's objectives, to sheer random, serendipitous discover- 
ies. Depending on the motivation of attackers and the tools available to them, 



30 



Roger W, Barnett 



the attack might be precisely focused on a known, discrete target; or it might 
take the form of a blunt, across-the-board destructive blow to an entire infor- 
mation system. The attacker might use a variety of techniques to gain access, 
and the effort might take a long time — perhaps spanning months, or even 
years. 

Monetary flows and financial databases, because they offer the prospect of 
great gain with comparatively low pain or risk, are prime targets. Presumably, 
the greater the sensitivity or the value of information, the more carefully it will 
be protected. This is only a presumption, however, because many information 
systems and vital services were designed, and constructed — and they are oper- 
ated — with no conception of, or attention to, any threat. 

National infrastructures have come under increasingly intense scrutiny in re- 
cent years as potential targets for information attack. Because of the growing 
danger, President Clinton, on July 15, 1996, issued Executive Order 13010 es- 
tablishing a Presidential Commission for Critical Infrastructure Protection 
(PCCIP). Chaired by retired Air Force General Robert T. Marsh, the commis- 
sion identified eight infrastructures that must be protected from the depreda- 
tions of information and other kinds of attack. These were: electrical power, gas 
and oil (storage and transportation), telecommunications, banking and finance, 
transportation, water supply systems, emergency services (including medical, 
police, fire, and rescue), and continuity of government services. The PCCIP 
presented the results of its inquiry in October 1997. 

Another attractive target is the US Department of Defense. The Deputy Sec- 
retary of Defense testified in 1998 that "95 percent of all of our communications 
now go over public infrastructure — public telephone lines, telephone switches, 
computer systems, et cetera." 10 Much of this departmental information is rou- 
tine and administrative, which is not to say that it is unimportant. Virtually all lo- 
gistics and medical information on service members travels over the public 
infrastructure, for example. If antagonists were unaware of such a dependency 
before, they clearly are now mindful of that vulnerability, and one prudently 
must assume that they are planning ways to exploit it. 

If, indeed, essentially all computers in the world are connected, then that con- 
stitutes about as target-rich an environment as can be imagined. 

Results 

The horizons being very wide and deep for information operations, and spe- 
cifically computer network attack, the results also occupy a broad spectrum. 
From a mere nuisance of defacing a web page with a political message to the loss 

31 



A Different Kettle of Fish: Computer Network Attack 



of great amounts of money, or potentially lives, the results vary with the objec- 
tives, attackers, tools, and targets, as well as the vigor, and the rigor, with which 
targets are defended. 

Exhortations have been raised that the United States is a prime candidate for 
an "Electronic Pearl Harbor." Those who issued such a warning meant that the 
United States is unprepared and not watching very closely, can be surprised, and 
that the results might well be truly shocking. Of course, beyond the initial 
trauma, what Pearl Harbor (and the subsequent declarations of war) accom- 
plished was to anger the American public and focus it laser-sharp on conducting 
war against the Axis powers. Given these facts, some argue that the reason more 
catastrophic events have not occurred — bringing down the Internet, for exam- 
ple, which some have contended is possible — is that potential attackers fear the 
"post-Pearl Harbor" backlash. 

To date, no catastrophic event has occurred because of computer network at- 
tack. Estimates of loss are difficult to make and for that reason often lack credibil- 
ity. If a particular company is prevented from doing business on the Internet for, 
say an hour, what is the cost of that? Was a once-in-a-lifetime opportunity 
missed, with incalculable costs? Opportunity costs are especially difficult to esti- 
mate, and that is frequently what is lost in a computer network attack. 

So, results could vary from the time lost to clean up the graffiti on a defaced 
website to, perhaps, billions of dollars in a financial transaction, drug deal, or ex- 
tortion. National infrastructures could be successfully attacked by CNA, with 
very disruptive results, and perhaps high innocent loss of life. 

The potential to wreak great damage virtually anywhere in the world, almost 
instantaneously, at very low cost, by almost anyone is imminent. International 
law offers a prospective tool to attempt to help control or mitigate the potential 
dangers. Each of the ingredients of an attack listed above offers a possible pres- 
sure point for legal application. As analyses and discussions on the subject pro- 
ceed, these five points can provide a useful framework upon which to build. 1 1 

Notes 

1. Distinctions have been made in the literature of information warfare between data, 
information, knowledge, and wisdom. This essay deals with tangibles: information is data that has 
been organized or assessed in some manner. Knowledge and wisdom have no independent existence 
outside the observer. Data and information exist regardless of whether they are known or 
interpreted. 

2. Thomas J. Czerwinski, The Third Wave: What the Tofflers Never Told You, 3 STRATEGIC 
FORUM #72 (1996). 

3. For an extended discussion, see Roger W. Barnett, Information Operations, Deterrence, and the 
Use of Force, NAVAL WAR COLLEGE REVIEW, Spring 1998, at 7-19. 

32 



Roger W. Barnett 



4. "Hackers" seek to differentiate between themselves and "crackers." They view the latter as 
malicious, irresponsible social elements, while they, merely in the interest of science — or perhaps 
helpfulness — are doing no harm. 

5. William Cohen, Janet Reno, William Daley, and Jacob J. Lew, Preserving America's 
Privacy and Security in the Next Century: A Strategy for America in Cyberspace, A Report to the 
President of the United States, September 16, 1999. 

6. Revelation and LOA [Legion of the Apocalypse], The Ultimate Beginner's Guide to 
Hacking and Phreaking, Volume 2, April 1, 1997. 

7. Bruce Middleton, Using the Hacker's Toolbox, SECURITY MANAGEMENT MAGAZINE, June 
1999, www.securitymanagement.com. 

8. Id. 

9. According to Middleton, supra note 7, most of these free tools can be acquired at: 
ftp://coast.cs.purdue.edu/pub/tools. 

10. Quoted in US Joint Chiefs of Staff, INFORMATION ASSURANCE: LEGAL, REGULATORY, 

Policy, and Organizational Considerations 55 (4th ed., 1999) 52. 

11. Following is a short list of references on the subject: 

James Adams, The Next World War: Computers Are the Weapons and the 
Front Line Is Everywhere (1998). 

Bruce D. Berkowitz, Warfare in the Information Age, ISSUES IN SCIENCE AND 

Technology, Fall 1995. 

John Arquilla and David Ronfeldt, In Athena's Camp: Preparing for 
Conflict in the Information Age, Santa Monica, CA: I^AND, (1997). 

Richard Brodie, Virus of the Mind: The New Science of the Meme (1996). 

Alan D. Campen and Douglas H. Dearth, Cyber war 2.0: Myths, Mysteries, 
and Reality (1998). 

Dorothy E. Denning, Information Warfare and Security (1999). 

David J. DiCenso, IW Cyberlaw: The Legal Issues of Information Warfare, AlRPOWER 
JOURNAL, Summer 1999, at 85-102. 

Lawrence T. Greenberg, Seymour E. Goodman, and Kevin J. Soo Hoo, 
Information Warfare and International Law, Washington, D.C.: National 

Defense University, (1997). 

Martin C. Libicki, What is Information Warfare? Washington, D.C.: National 

Defense University, (1995). 

Walter Gary Sharp, Sr., Cyberspace and the Use of Force (1999). 
Mark Russell Shulman, legal Constraints on Information Warfare, 

Occasional Paper No. 7, Maxwell Air Force Base, AL: Air University, 1999. 

Don Tapscott, Growing Up Digital: The Rise of the Net Generation (1998). 

Chairman of the Joint Chiefs of Staff, Joint Publication 3-13, Joint Doctrine for 
Information Operations, (1998). 

Internet sites: 

www.infowar.com 

www.terrorism.com/infowar/index.html 

www.cert.org/ 

www.twurled-world.com/Infowar/Update2/cover.htm 

www.antionline.com 



www.itaa.org 



33 



IV 



Information Operations, Information 
Warfare, and Computer Network Attack 

Their Relationship to National Security in the 

Information Age 



Daniel T. Kuehl* 
Introduction 




hat is "information warfare"? Is it nothing more than a bumper 
sticker, used as a "quick fix" rescue for budgets and programs that 
find it useful to attach themselves to the hot new concept? Is it such a revolu- 
tionary new amalgam of technologies and concepts that old and traditional 
forms of warfare are soon slated to fall into the same receptacle in which out- 
moded military technologies such as the catapult and war galley slumber? Is 
warfare as we understand it, featuring "blast, heat, and fragmentation," about to 
become obsolete? The intent of this brief introduction to information warfare 
(IW) and information operations (IO) is to both explore these issues and present 
the thesis that they are best understood in light of the environment in which 
they take place — the information environment — and to explore the relation- 
ship of that environment to the specific topic on which this book is focused, 
computer network attack. 



Information Operations, Information Warfare, and Computer Network Attack 

What is Information Warfare? 

A useful starting place is to trace the evolution of the term information 
warfare itself. The earliest use of the term in the United States probably origi- 
nated in the Office of Net Assessment, where in the 1970s Dr. Tom Rona was 
investigating the relationships among control systems, a field known as cyber- 
netics. Dr. Rona described the competition between competing control systems 
as "information warfare," in the sense that control systems can be described as 
the means for gathering, processing, and disseminating information, processes 
which can be diagrammed and described with flow and feedback charts of 
mind-numbing dryness and complexity. 2 In 1993 the Department of Defense 
published an official definition for the term, in a highly classified DoD Directive, 
TS3600.1. There were actually several definitions, at differing levels of classifi- 
cation. 3 Not surprisingly, this definition was frequently revised as the opera- 
tional and organizational implications of the concept evolved. The current 
definition has the record for longevity — more than five years at the time of this 
writing, since the promulgation of the current guidance on information warfare 
and information operations in DoD Directive 3600.1 on December 9, 1996. 4 
The publication of Joint Publication 3-13, Joint Doctrine for Information Op- 
erations, in October 1998 probably ensures that the current official DoD defini- 
tions of IW and IO will remain in effect for some time longer. 5 

The present definitions leave much to be desired, however, if one is hoping to 
find explanations that clarify and explore what might constitute the character, 
conduct, and intent of IW and IO. But since one must understand what IO is in 
order to move to its less comprehensive building block, IW, these definitions do 
provide a useful starting point: 

Information Operations: Actions taken to affect adversary information and information 
systems while defending one's own information and information systems. 

Information Warfare: Information operations conducted during time of crisis or 
conflict to achieve or promote specific objectives over a specific adversary or 
adversaries. 

There is actually a second sub-activity of IO that is critical to national security in 
the Information Age, namely information assurance (IA), defined thus: 

Information Assurance: Information operations that protect and defend 
information and information systems by ensuring their availability, integrity, 

36 



Daniel T. Kuehl 



authentication, confidentiality, and non-repudiation. This includes providing for 
restoration of information systems by incorporating protection, detection, and 
reaction capabilities. 6 

While these definitions throw a less-than-blinding light on their constituent 
activities, there is one critical theme that they are intended to bring out, and 
that involves "who" does them and "when" they are done. IW is clearly a mil- 
itary activity conducted under a special set of circumstances, whereas IA in- 
volves not only the military, but also government at all levels, and even 
portions of the private sector. Therefore, IO as an activity goes far beyond just 
the military during conflict, to include the government and a wider range of 
private sector activities than perhaps that sector or even the government 
recognizes. 

Most US service concepts of IW rest in part on the concept of the "informa- 
tion environment." Whether described as an environment, realm, domain, or 
whatever, there is a clear sense that information has become some kind of 
"place" in which crucial operations are conducted. The Army's trailblazing 
1996 doctrinal publication, Field Manual 100-6, Information Operations, even 
speaks of a "global information environment [and] battlespace" in which con- 
flict is waged. The latest version of the USAF's basic doctrinal publication, Air 
Force Doctrine Document 1 , published in 1997, explicitly addresses the need to 
dominate the information realm, and discusses information superiority as "the 
ability to collect, control, exploit, and defend information while denying an ad- 
versary the ability to do the same . . . [it] includes gaining control over the infor- 
mation realm. . . ." 7 Joint Pub 3-13 defines it somewhat differently as "[t]he 
capability to collect, process, and disseminate an uninterrupted flow of informa- 
tion while exploiting or denying an adversary's ability to do the same." Both, 
however, share the sense that information superiority involves doing something 
to the adversary while protecting ourselves in order to control and exploit the 
information environment. Using this philosophy, then, IW and IO can be de- 
scribed as the struggle to control and exploit the information environment, a struggle 
that extends across the conflict spectrum from "peace" to "war" and involves 
virtually all of the government's agencies and instruments of power. 8 One appeal 
of this approach is that if one replaces "information" with "aerospace" or "mari- 
time," you have defined air and naval warfare, or more appropriate to our pur- 
poses, airpower and seapower. Information operations can thus be described as 
those activities that governments and military forces undertake to control and 
exploit the information environment via the use of the information component 
of national power. 

37 



Information Operations, Information Warfare, and Computer Network Attack 



This immediately raises another question: what is the information compo- 
nent of national power? More than just another bit of computer-age termino- 
logical fluff, its origins actually predate this decade, starting with the strategies 
developed by the Reagan Administration in its very real struggle with the for- 
mer USSR. In 1984 the Reagan Administration issued National Security Deci- 
sion Directive 130, US International Information Policy, which outlined a 
strategy for employing the use of information and information technology as 
strategic instruments for shaping fundamental political, economic, military, and 
cultural forces on a long-term basis to affect the global behavior of governments, 
supra-governmental organizations, and societies to support national security. 9 
This is hardly a new concept, and clearly governments and leaders have been ex- 
ploiting the information environment for centuries. Indeed, one could argue 
that the stone carvings that Assyrian rulers made of conquered peoples and cities 
being enslaved and pillaged were intended as much to cow and terrify current 
and potential subjects as to inform archeologists thousands of years later about 
what hard and cruel folks they were. Regardless of the fact that the information 
technology being employed was stone and chisel, and not microchip and com- 
puter network, this was exploitation of the information environment for strate- 
gic political objectives. 

Two examples from this century will suffice to illustrate the critical impor- 
tance of this environment to national security. The first took place on August 5, 
1914, when the royal cableship Telconia sortied into the North Sea and severed 
all five of Germany's direct undersea telegraph links with the outside world. 
After that date, the view that the rest of the world had of The Great War in- 
creasingly passed through a lens located in London. This enabled British infor- 
mation warriors to mount a very effective strategic perception management 
campaign that eventually helped bring the United States into the war on the 
side of the Allies, thus moving from strict neutrality to waging war to "make the 
world safe for democracy." Great Britain was exploiting the information com- 
ponent of national power. The second example comes from the Cold War and 
the efforts by the United States and some of its allies to exploit another segment 
of the information environment — radio — to weaken the political cohesion of 
the Soviet Union and the peoples it controlled. Radio Free Europe did not by 
itself, of course, cause the fall of communism and the Soviet government, but it 
certainly had its role to play. It is perhaps instructive that certain elements 
within the former Soviet Union still blame Western IO for communism's col- 
lapse. 10 Yet since both these examples employed old information technolo- 
gies — telegraph cables and radio — they also beg the question: what is the role of 
the computer in all of this? 

38 



Daniel T. Kuehl 



A New Geostrategic Context 

The previous examples raise the question of what is so new and different 
about the current state of the "information environment" to warrant all the fuss 
about "computer network attack" and information warfare. The answer is four- 
fold: cyberspace, digital convergence, global digital omni-linking, and com- 
puter control of infrastructures, all of which are synergistically combining to 
create a new geostrategic context for national security. 

One's receptivity to the changes of the information revolution is often re- 
vealed by the reaction to the word "cyberspace." At the very utterance of the 
word, doubters and skeptics display intellectual and sometimes even physical 
discomfort, while the "digerati" and those at ease with the technologies of the 
information age react as if someone had said "traffic" or "radio" or any other 
commonplace term. Almost everyone is familiar with the use of information as a 
tool, a process, even a weapon — recall the earlier comment about "blast, heat, 
and fragmentation" — yet while all of these remain not only applicable but even 
vital to the new and evolving "American way of war," none in isolation goes far 
enough. This chapter argues that the synergistic effects of electronic digital tech- 
nology, acting in and on societies that are becoming increasingly information- 
dependent, have made information into a virtual environment, with cyberspace 
as its physical manifestation. Cyberspace, defined here as that place where elec- 
tronic systems such as computer networks, telecommunications systems, and 
devices that exert their influence through or in the electromagnetic spectrum 
connect and interact, has always existed, but not until mankind invented tech- 
nologies that operated via the electromagnetic spectrum did it become "visible" 
and noticed. 11 A useful analogy is outer space. It has always been there, but not 
until humans developed technologies for extending our activities into it and 
used it to affect terrestrial affairs did we fully comprehend that it is another physi- 
cal and operational environment in addition to the land, sea, and air. Outer space 
does not have the same physical presence or properties of land or water because 
you cannot "weigh" it or "measure" it in a useful sense, but it nonetheless exists 
because we can see the physical results of things that happen there. 12 

The physical laws and principles that govern and delineate how systems func- 
tion in these environments are the borders that fix their boundaries. 13 Subma- 
rines, for example, function very well in an environment governed by the laws 
of hydrodynamics, but they cannot fly. Armored fighting vehicles function ef- 
fectively on land, but they are useless in space. All of these distinct and unique 
environments synergistically interact with each other, and the same holds true 
for cyberspace. The devices and systems that operate in cyberspace — radios, 

39 



Information Operations, Information Warfare, and Computer Network Attack 



radars, microwaves, computer networks — function because they conform to 
and exploit the laws governing radiated and electronic energy. We can date our 
use of this environment to the mid- 19th Century and the invention of the tele- 
graph, which was the first telecommunication system to operate in accordance 
with the laws of this medium. 14 The following century saw regular and 
ever-more technologically sophisticated advances in our ability to control and 
exploit this medium — undersea telegraph cables, radio, television, microwave 
relay, even communications satellites — that extended the reach of telecommu- 
nications to continental and eventually intercontinental distances. We have in- 
creased the volume of information that we can store, manipulate, and transfer to 
previously unimaginable proportions, but it was only in the closing quarter of 
the 20th Century that the fortuitous, perhaps even serendipitous, marriage of 
these technologies with the microchip led to attainment of "critical mass" and 
the emergence of cyberspace as a full fledged environment in which military 
forces and society in general — politics, business, education, and more — began to 
learn how to operate. Given this definition of cyberspace, we see the link to 
computer network attack; cyberspace is the physical environment in which such 
operations take place. 

Cyberspace is the basic arena in which two additional developments of the in- 
formation revolution are transforming the strategic landscape: the increasing ca- 
pability to transform almost any kind of information into ones and zeroes, in 
what is known as digital convergence, and the growing Internetting of global tele- 
communications media in a condition referred to here as global omni-linking. Al- 
though these developments are distinctly different, they are at the same time 
synergistic and interdependent. Thomas Kuhn suggested in his landmark study 
of scientific revolutions that the history of technological advancement has not 
been one of steady discoveries or developments, but rather one marked by spikes 
or sharp advances that flow from extraordinary finds or revelations that yield dis- 
continuous and revolutionary changes. 15 Such has been the case with informa- 
tion technology. Advances in communication technologies prior to the middle 
of the 20th Century were relatively linear — telegraph to telephone to radio and 
so forth. The break point came with the invention of the microchip because the 
synergistic advances in information storage, manipulation, and transmission ca- 
pabilities made possible by digital convergence are happening at an ever- 
increasing and nonlinear rate. These developments have occurred in two areas, 
the speed of information manipulation/transmission, and the volume of informa- 
tion that can be manipulated/transmitted. The combination of these attributes 
with computer-enhanced and controlled telecommunications systems have led 
to the "omni-linking' of the electronic digital world. In a word, the globe is now 

40 



Daniel T. Kuehl 



"wired." The explosion that has resulted from the application of the microchip 
to communications technologies has formed the new science of telematics — the 
marriage of computers and telecommunications. 

Telematics has created a new operational environment. The technology of 
the telematic age we use to exploit cyberspace is new, perhaps less than two de- 
cades old, and global omni-linking is inseparably tied to the emergence of 
cyberspace as an operational environment. While current technology is actually 
rudimentary compared with what the future holds in store — compare the level 
of aviation technology in the 1930s (biplanes) with what came just half a century 
later (747s and B-2s) — the omnilinking of the world is increasing every day, as 
more and more computer networks and telecommunications systems tie to- 
gether and pass the lifeblood of today's economic and political world . . . digital 
information. The degree to which our societal dependence on this environment 
is growing is startling. Our military forces already depend on it. The Persian Gulf 
War of 1990-91 simply could not have been fought in the way we fought it 
without precision information for precision weapons, command and control 
systems that enabled us to operate like a matador around a woozy and 
half-conscious bull, or satellite communications links that enabled organizations 
half a world away (NORAD) to monitor Iraqi missile launches and pass target- 
ing information to Patriot batteries to engage the missiles. 16 Our micro- 
chip-driven information collection, storage, manipulation, and transmission 
capabilities are so advanced, and the links that move the information around so 
Internetted, that we worry that TV news commentators on the east coast could 
skew election results on the west coast by announcing "analysis of voting trends 
indicate candidate 'Z' has won the election." The global economy cannot func- 
tion without the constant supply of digital electronic information. It has become 
a form of energy or capital, and global business is utterly dependent on telematic 
systems and capabilities to keep the world's economy going twenty-four hours a 
day. Business practices such as "just in time inventory," or military techniques 
such as "just in time logistics," cannot function without the digital information 
that fuels it. In a very real sense, Joint Vision 20 10, 17 which could be called the 
"new American way of war," is possible only if American forces possess "infor- 
mation superiority," defined by Joint Pub 3-13 as "[t]he capability to collect, 
process, and disseminate an uninterrupted flow of information while exploiting 
or denying an adversary's ability to do the same." The "Internet" is neither a fi- 
nite place nor a collection of gadgets such as routers and switches; it is a descrip- 
tion of the increasing omni-linking of the world. Thinking of the Internet in 
terms of its users, such as "America OnLine" or "CompuServe," or in terms of 
uses, such as chat rooms or E-commerce, is as shortsighted as describing 



41 



Information Operations, Information Warfare, and Computer Network Attack 

aerospace in terms of an airline. While some dismiss this environment and the 
Internet as merely entertainment or worse, this view ignores the fact that a very 
large percentage of the information currently available on TV or in print would 
fall into the same category. Few, however, would deny the impact of visual me- 
dia on the American populace's support of the Vietnam War or the impact of the 
printed word on democracy and freedom via the "Declaration of Independ- 
ence" or "Emancipation Proclamation." What is different is that the Internet 
and omni-linking make it increasingly possible for that televised image to be 
seen instantly by an ever increasing percentage of the world's population, or for 
that opinion-shaping paper to be sent to tens or even hundreds of millions of 
people simultaneously and in their own language. 18 Digital convergence, com- 
bined with connectivity, adds up to the second major part of the fundamental 
difference between the information age and the period "BMC" — "Before the 
Micro Chip." 

The final major development shaping the new geostrategic context is the 
increasing reliance on computerized networks for the control and operation 
of key infrastructures in advanced societies. The growing reliance on these 
systems for the control and functioning of an increasingly large segment of the 
infrastructures on which we depend for economic, social, political, and even 
military strength is both a boon and vulnerability. As suggested by Chairman 
of the Joint Chiefs of Staff Instruction (CJCSI) 6510.1, Defensive Informa- 
tion Warfare, "use breeds dependence, and dependence creates vulnerabil- 
ity." 19 Whether it be the supply of energy (electricity, oil, gas), the manage- 
ment of transportation (railroads, air traffic control, motor vehicle move- 
ment), the transference of digital wealth (electronic funds transfer, digital 
banking, control of stock exchanges), or the operation of the very telematic 
media that supports the entire structure, look below the surface of almost any 
segment of daily life in modern societies and one will find Internetted and 
interlinked computer systems. 20 

The degree to which this is invisible to the general populace is illustrated by a 
real incident. In February 1996, Washington DC suffered a tragic but relatively 
typical industrial-age accident — a train wreck. During a snowstorm a commuter 
train collided with a freight train, and several people were killed. The investiga- 
tions by the news media examined almost every aspect of the accident, including 
the signaling system that provided instructions to the train operator (who was 
also killed, heroically trying to warn passengers instead of saving himself) via the 
ubiquitous signal lights that line railroad tracks all over the world. The news me- 
dia focused on whether the operator saw the signals, whether they were properly 
placed, or whether they functioned properly. None asked whether the signals 

42 



Daniel T. Kuehl 



had been electronically tampered with (they had not been), nor even raised the 
issue of how the signals were controlled or where those controls were located. 
They were controlled, of course, by Internetted computer systems, and the 
computers which control the rail signals for the trackage in Washington DC are 
located at the operations center for CSX Railways, in Jacksonville, Florida, sev- 
eral hundred miles distant. This is an illustration of how deeply imbedded within 
modern societies such control systems have become, and how unaware most of 
us are of their functioning. 21 

It is a government responsibility, however, to not only be aware of such de- 
velopments, but also to take precautionary and preventive measures to mitigate 
potential disruptions to the effective functioning of systems upon which the so- 
ciety and national security depend. In July 1996, the Clinton Administration is- 
sued Executive Order 13010, which directed the formation of a unique 
commission, the President's Commission on Critical Infrastructure Protection, 
or PCCIP, which brought together senior governmental officials and represen- 
tatives from those private sector industries and businesses that comprised these 
key infrastructures into a commission tasked with studying the vulnerability of 
these infrastructures to disruption. While the commission examined both the 
physical and cyber threats, they freely acknowledged that their emphasis was on 
the cyber threat, in part because it was — and remains — less well understood than 
physical threats. Their conclusion that the threat is real and growing might seem 
unsurprising and perhaps even preordained, but nonetheless reflects the grow- 
ing awareness that our very dependency on computerized control of infrastruc- 
tures creates an inherent vulnerability that is at the heart of hypothetical 
scenarios for information warfare in which computer network attacks on critical 
infrastructures "take down" key segments of those infrastructures and thus gen- 
erate cascading effects on such systems as transportation, banking, or emergency 
services. It was the need to respond to this vulnerability that caused the Clinton 
Administration to issue Presidential Decision Directive (PDD) 63 on May 22, 
1998, establishing a national coordinator for infrastructure protection within the 
National Security Council and creating an organizational structure by which 
such threats and vulnerabilities could be mitigated. PDD 63 called for a public 
sector-private sector partnership to develop cooperative procedures and organi- 
zations to assess the threats and vulnerabilities and create countermeasures, and 
thus stands as a landmark step in what is now called computer network defense 
(CND) against the threat of what has in some quarters been termed 
"infrastructural warfare" employing computer network attack (CNA). 22 But as 
perhaps the key element in information warfare, is the computer network the 
target, or merely the means to the target? 



43 



Infonnation Operations, Information Warfare, and Computer Network Attack 

Computer Networks, National Security, and the "Metanetwork" 

This chapter has already used several terms relating to computer networks 
without defining those activities. The current CJCSI 3210.1, Joint Information 
Operations Policy, dated November 6, 1998, currently includes three such 
activities, defined thus: 

Computer Network Attack (CNA): Operations to disrupt, deny, degrade, or 
destroy information resident in computers and computer networks, or the 
computers and networks themselves. 

Computer Network Defense (CND): Measures taken to protect and defend 
infonnation, computers, and networks from disruption, denial, degradation, or 
destruction. 

Computer Network Exploitation (CNE): Intelligence collection operations that 
obtain information resident in files of threat automated information systems (AIS) 
and gain information about potential vulnerabilities, or access critical information 
resident within foreign AIS that could be used to the benefit of friendly 
operations. 23 

The thread that ties these activities together is the computer network. The 
network may be the actual target, in the sense that the attacker wishes to make 
the network cease its function of transferring information. It may be the 
means to affect another target, such as a database or other information-based 
process, in which the attacker does not want to cut the network, but rather 
use it in order to impact or degrade an adversary's decision-making process. 
The objective of computer network defense is to prevent an adversary from 
doing either of these to our networks. Computer network exploitation is spe- 
cifically concerned with intelligence operations. While the dividing line be- 
tween CNA and CNE may well be very murky — indeed, a single keystroke 
might be the only difference — we will not discuss CNE or even CND fur- 
ther, in part because those operations bring along their own baggage train of 
thorny issues and unresolved questions. CNA will be a sufficiently difficult 
problem to address here. 

Imagine for a moment that a warrior (the specific service or warform is irrele- 
vant) has just destroyed a critical target, comprised of all the computerized data- 
bases contained in the enemy's central C3 facility. Does it matter if this was done 
with a laser-guided aerial bomb, a five-inch round from a warship at sea, a 

44 



Daniel T. Kuehl 



120mm round from a tank, a ballistic weapon dropped from space, or via mali- 
cious programming code "delivered" by computer intrusion? The definition of 
CNA cited above does not clearly state the answer, but it is this author's conten- 
tion that the means used is immaterial; since the intent clearly conforms to the 
spirit of the definition, any or all of the examples just cited could be CNA. In all 
but the last case, however, warriors and jurists alike probably consider them- 
selves to be on fairly firm ground. It is the last case that gives everyone pause. In 
part, this comes from our intellectual and doctrinal desire for clarity. Warriors 
seek to clearly distinguish between different kinds of operations so that they can 
establish clear lines of authority and control. Unfortunately, this may not be fully 
possible in the information battlespace. The example cited above could be air, 
naval, land, or space warfare, in addition to being information warfare. This is 
not unique to information warfare, although we do not often examine military 
operations from such a multi-doctrinal perspective. During the October 1973 
Yom Kippur War, for example, once Israeli armored forces crossed the Suez Ca- 
nal in their counteroffensive they began destroying Egyptian surface-to-air mis- 
sile forces, which enabled the Israeli Air Force to expand operations. This is a 
wonderful example of what airmen term Suppression of Enemy Air Defenses, or 
SEAD. Doctrinally, SEAD is a part of what is in turn called Counterair Opera- 
tions — things done to seize and maintain control of the air. Thus, armored forces 
were part of an air superiority operation at the same time they were engaging in 
what ground forces would call maneuver warfare. This same kind of doctrinal flexi- 
bility must also be applied to information warfare and CNA. 

The first aspect of CNA mentioned above focused on the destruction or ne- 
gation of a network. Regardless of whether this is accomplished kinetically — the 
laser guided bomb, for example — or via cyberspace, the intent remains the same, 
to prevent the adversary's use of the network. We will not consider kinetic 
means further, since they are already well understood, but the use of the com- 
puter to negate another computer is less well understood. There is no need here 
to discuss the intricacies and details of computer code, and such issues are ad- 
dressed in great detail in a myriad of books on computer security and informa- 
tion technology. That said, a word or two on the basic context are in order. 24 
The basic objective of virtually any computer intruder or hacker is to be able to 
operate within the system as if he/she owned it. Once this level of access is 
gained, the pseudo-owner can then change programs, functions, addresses, and 
almost any other aspect of the way the computer or the entire network in which 
it resides operates. Thus, an intruder that obtains root access into a computer 
network that controls personnel records, for example, could perhaps alter the 
content of those records or change how those records are stored or transferred. 



45 



Information Operations, Information Warfare, and Computer Network Attack 



The implications of this for the proper functioning of any computer network, be 
it military, government, or business, are obvious. 

As pointed out earlier, modern technologically advanced societies are in- 
creasingly dependent on computer networks for a growing range of societal and 
national security needs. If the computer system that controls rail operations in 
the southeast United States can be degraded, for example, it will slow down or 
perhaps even stop the movement of military forces that depend on rail links to 
move to their deployment locations. If the telephone system that supports Scott 
Air Force Base, headquarters of US Transportation Command, Air Mobility 
Command, and the Tanker-Airlift Coordination Center, can be severely de- 
graded it could seriously hinder the movement of US forces overseas. If the en- 
ergy management system (electric, gas, and oil) in the northeast could be 
degraded during severe winter weather it might cause a refocusing of national 
political and strategic attention away from a distant and perhaps poorly- 
understood overseas problem to an unfolding disaster right at home. Some of the 
discussion of infrastructural vulnerability seen recently has given far too little credit 
to the resiliency and robustness of these networks. However, while loose talk of 
"taking down" entire national infrastructures is fanciful at best, it also remains true 
that all of these infrastructures are in some degree vulnerable to intrusion and deg- 
radation. Examples as recent as the 1999 Kosovo conflict, during which a variety 
of allied computer networks such as the NATO e-mail system came under attack 
via what was a "denial of service" effort to overload the system with electronic 
traffic, indicate that this will be an active battlespace in the future. 25 

If the intent of a CNA is to partially or completely deny access to or use of the 
network, defenders are faced with a thorny set of problems, but at least they will 
probably be aware that the system has been targeted. When you receive multiple 
thousands of unanticipated e-mail messages within a short span of time in what is 
termed a "spam" or denial of service attack, you can reasonably assume that 
someone — even though you might not know whom — means you harm. CNA 
that does not attempt to overtly prevent use of the system, however, but rather is 
intended to covertly subvert its purpose by changing the content, is perhaps an 
even more difficult problem. Let us use the analogy of a pipeline that is carrying 
jet fuel. In traditional, kinetic warfare, we would target it for destruction from 
the air, and a smart airplane carrying PGMs would come along and neatly blow 
the thing apart, thus preventing the enemy from refueling his jets from it. But 
what if we did not want to be so noisy? We could send a special operations unit 
to the pipeline, attach to it a small pumping device that injects a small but fatal 
(from a jet fuel standpoint, at least) amount of some nasty foreign substance, and, 
even though the pipeline itself is still intact, render the stuff flowing through the 

46 



Daniel T. Kuehl 



pipeline unusable. It is a perfect analogy for digital modification of data, and it 
might be virtually invisible until too late. Let us assume that the computer code 
for "bomb, 500 pound" is a combination of forty-four ones and zeros, while the 
code for "bomb, 4,000 pound" is another combination of forty-four ones and 
zeroes — almost, but not quite, identical. The opportunity for logistical chaos is 
immediately apparent. If one eighth the anticipated number of munitions show 
up at Base X, but all of them are too large for the aircraft at that base to carry, 
some significant friction has just been injected into the air war. We have a long 
history of instances where accidental but incorrect computer code in systems 
that deal with telecommunications or energy has caused significant malfunctions 
with those systems, and we have seen a growing number of cases of intentional 
intrusion into these and other such computer networks. 26 

The mindset of many senior strategic leaders regarding the computer still 
seems to be that they are large, expensive, and stand alone in their respective 
"data center" somewhere. The reality is just the opposite — for they are small 
(and getting smaller every week), cheap (and getting cheaper every week), and 
interconnected on a global scale. It can be a difficult realization that if you oper- 
ate a computer that is plugged into a telephone, you are theoretically connected 
to every other computer on the face of the earth that is also connected to a tele- 
phone, even if it is a cell phone — hence the strategic importance of what this 
chapter calls "omni-linking," because the globe is literally covered with count- 
less individual computer networks that are nonetheless all part of the growing 
global "metanetwork" to which tens of millions of individuals, organizations, 
and entire societies are connected. It would seem to be inescapable that as more 
and more human activity is conducted in cyberspace via the metanetwork, it will 
become a battlespace and an arena for conflict. But will it be war? 

Information Warfare — Is it "War"? 

Perhaps a necessary starting point for this question is: what is war? Most mem- 
bers of the military and the national security community would have no diffi- 
culty recognizing Clausewitz's characterization of war as "an act of [physical] 
force ... a pulsation of violence." 27 Too often, perhaps, the rest of the phrase, 
"to impose our will," is forgotten. The reason for the force and violence is the 
imposition of the will of one political entity onto another political entity. The is- 
sue at hand now is the potential ability of political actors to impose their will 
through informational means. 

In the Clausewitzian paradigm, war was waged by a special class of actors, 
"warriors," on behalf of a special kind of political entity, "States." The warriors 

47 



Information Operations, Information Warfare, and Computer Network Attack 

were the uniformed military — soldiers, sailors, later airmen — and the States 
were the legitimate and recognized holders of international legal authority to 
engage in the force and violence of warfare. Almost at the same time (late 19th 
Century) as the Clausewitzian paradigm began rising to international promi- 
nence another force arrived on the scene, the international codification of legal 
norms for the conduct of war and the protection of certain classes of society. 
These norms, first enacted a century ago (1899) at The Hague, almost immedi- 
ately encountered two extremely powerful forces: the nature of the modern in- 
dustrial State and the influence of new technological means of warfighting. 

The modern industrial State possessed an unprecedented amount of killing 
and dying power. Although this was clearly hinted at by the course of the Ameri- 
can Civil War, the great European military powers failed to recognize it until 
too late. 28 The result was the stalemate and slaughter of The Great War and the 
Western Front, in which the amount of destructive force that the industrial State 
could generate was matched only by the amount of destructive force it could 
withstand. Twenty years later these same great powers demonstrated that their 
killing/ dying power had actually increased, with the result that World War II's 
toll far exceeded that of World War I. This was made possible by the State's abil- 
ity to employ and draw upon power sources that cut across almost the full 
breadth of society. These sources crossed the boundaries of what had been in- 
tended as sanctuaries and protected groups, such as undefended towns or non- 
combatants such as women. But did the concept of an undefended town mean 
anything useful in an era of nationwide air defense systems with flak belts and 
fighter patrols? Was "Rosie the Riveter" a protected person when she and her 
sisters left their homes to build U-boats or liberty ships? 29 It became increasingly 
obvious that the modern industrial State was a series of networks or infrastruc- 
tures, and the American doctrine for strategic airpower in World War II was 
based on exploiting this fact. The "industrial web" theory of targeting, devel- 
oped at the Air Corps Tactical School in the 1930s, came from precisely this par- 
adigm and was based on the belief that if the critical nodes or "centers of gravity" 
(a 1990s adaptation of a Clausewitzian term) of an industrial State could be ne- 
gated, the resulting stresses on the entire system would cause it to unravel like a 
spider's web whose critical connecting points have been cut. 30 The result of the 
interplay of these factors was a change in our paradigm of warfare, from the 
"limited" dynastic wars of the 19th Century to the "total" wars of survival — po- 
litical, religious, racial, ideological — of the 20th Century. 

A second critical factor was the development of new forms of warfare based 
on the exploitation of new forms of technology. The first great revolution in 
military affairs (RMA) of the last century was the adaptation of the internal 

48 



Daniel 7\ Kuehl 



combustion engine to warfare, and by the end of the century's second decade 
warfare had become incredibly more complex than it had been in 1900 because 
it was now multidimensional. No longer was warfare waged on the surface. 
Now it went on below the ocean's surface and above both the sea and the land, 
and military success became increasingly dependent on the successful coordina- 
tion of operations in all three dimensions. Thus, the invention and employment 
of the submarine and the airplane transformed warfare, a fact that was clearly vis- 
ible during World War II in that no nation that failed to dominate all three envi- 
ronments was successful. To make the situation more complex, by 1945 it was 
clear that any force that was unable to operate in yet a 4th dimension — the elec- 
tromagnetic spectrum, or what has here been defined as cyberspace — would 
have great difficulty operating successfully in any of the other three dimensions. 
This trend has continued and been intensified with military exploitation of yet 
another physical environment, outer space. The strategic and operational envi- 
ronment for warfare at the cusp of the new millennium now enfolds geospatial 
awareness, global connectivity, and a host of new factors that have further com- 
plicated the art of war. Not surprisingly, the legal context for conflict, which in- 
cludes the law of war and the complex series of agreements and treaties that 
provide a framework for the affairs of State and conduct of statecraft, has been 
outpaced by the technologies available to global society. At the outset of the 
20th Century, issues such as unrestricted submarine warfare and strategic bomb- 
ing held promise of a disconnect between the law and war, while at its close 
other issues, such as netwar or the weaponization of space, hint at further uncer- 
tainty in how States and societies will attempt to regulate conflict. The same two 
forces that arose at the opening of the last century are still at work, with the nota- 
ble difference that instead of the industrial age it is the information age that is 
changing the paradigm. 

In some ways, the impact of the information revolution on warfare is quite 
apparent, and the application of advanced information technologies to tradi- 
tional military capabilities and weapon systems — what could be termed infor- 
mation "in war" — serves to make "blast, heat, and fragmentation" work more 
efficiently and effectively. Information used as a weapon, tool, or even target is 
nothing new, even though the new technologies vastly increase its impact as an 
enabling capability or force multiplier. Sending target photos via secure fax from 
intelligence organizations in the United States to air campaign planners in 
NATO, thus enabling the destruction shortly afterwards of key Serbian infra- 
structure nodes via precision guided munitions, is an example of this fact. This 
exponential power as an enabler is an important, even vital aspect of what the Air 
Force calls "information in war," 31 a critical foundation for information warfare, 



49 



Information Operations, Information Warfare, and Computer Network Attack 



but it is not synonymous with it. Information warfare is a new warform that is 
evolving from the synergistic effects of several new and unique factors, all part 
and parcel of the information revolution. 

This brings us back, however, to the entering question: is this "war"? Does 
this fit with the Clausewitzian paradigm of force and violence? If a State is able to 
degrade an adversary's military capability, damage its key infrastructures, and in- 
ject great disorder into political systems or economic affairs, all without the use 
of kinetic force and violence, might not the recipient of such effects argue that 
they had indeed been "attacked" and were thus "at war" with the inflictor? Dur- 
ing a recent exercise conducted annually at the Air Force Wargaming Institute 
by students from all of the DoD's senior military colleges, the "red team" devel- 
oped a war plan against "blue" that included information warfare attacks against 
such targets as the air traffic control system, financial centers, energy distribution 
network, and telecommunications infrastructure, with the intent of degrading 
and disrupting blue's political will and strategic capability. The red team's objec- 
tive was to seriously undermine the ability and will of both blue and its allies to 
continue armed opposition to red's other operations. This exercise in informa- 
tion warfare — which the students named "Dangerous Opportunity" — might be 
seen as a mirror-imaging of American attitudes and mindsets, but it also reflects 
technological conditions and vulnerabilities that the information environment 
may make available in any future conflict. It also closely tracks with recent publi- 
cations by some senior Chinese officers, who postulated precisely such opera- 
tions in their concept for "Unrestricted Warfare." 32 But does this perspective 
reflect any sort of consensus on what IW and IO are? 

Perspectives and Doctrines 

Earlier it was pointed out that the terminology of IW and IO are still evolv- 
ing; not surprisingly, so are the various operational and doctrinal concepts held 
by the different organizations involved in the IW/IO effort, both in the United 
States and globally. It is worth some time to briefly explore some of these doc- 
trinal and operational concepts. In the American military much of the future di- 
rection for IW/IO will come from "Joint Vision 2010," published by the Joint 
Staff in 1996, amplified in 1997 by "Expanding Joint Vision 2010: Concept for 
Joint Warfare," and further amplified by "JV 2020" in the summer of 2000. 33 
JV2010, as it is called, postulated several dynamic changes in the overall strategic 
environment and the emergence of new operational concepts. A key hypothesis 
of JV2010 is that dramatic changes in new information technologies will make 
attaining and maintaining information superiority a critical requirement. 

50 



Daniel T. Kuehl 



Concepts such as Dominant Battlespace Awareness or Network Centric War- 
fare are based on the assumption that new information technologies will enable 
US forces to develop and exploit networks of sensors, decision-makers, and 
shooters that can operate far faster than their adversaries, and thus translate infor- 
mation superiority into actual combat power. 34 

If the technologies of the information revolution are creating an information- 
based RMA, it remains for the American military to bring this to fruition by cre- 
ating organizations, doctrines, and operational concepts to exploit technological 
advantages, and turn them into actual military capability. 35 In 1998 the Joint 
Staff finally published Joint Publication 3-13, Joint Doctrine for Information 
Operations. Like any such publication, it represents what all of the various coor- 
dinating parties could agree on, including the four military services. It is not a vi- 
sionary document with radical new operational concepts, but it does emphasize 
that IO is not a technical capability, but rather a coordinating strategy for opera- 
tions in the information environment, and it makes three critical points. First, 
joint forces at all levels must organize to conduct IO, and every one of the com- 
batant commands, such as European or Central Command, have created 
full-time planning cells for IO. Next, the IO planning process must begin long 
before operations begin; it is too late to begin planning just a few days before the 
operation's scheduled initiation. Finally, joint forces must train and exercise in 
an information-intensive environment and engage all of the applicable organi- 
zations, including perhaps private sector or combined-multinational entities. 

All US services — Army, Navy, Marine Corps, and Air Force — have 
approached IW/IO somewhat differently, viewing them through their individ- 
ual warfighting lenses. The Army was the first service to publish specific doctrine 
for IO, and Field Manual 100-6, published in 1996, contained eloquent lan- 
guage about the "global information environment [and] battlespace," as men- 
tioned earlier. But the doctrine's perspective was clearly on the need to 
"integrate all aspects of information to support and enhance the elements of 
combat power," those being the rather traditional: infantry, armor, artillery, 
and, to a lesser extent, airpower delivered via rotary-winged helicopters. The 
Army has chartered an organization, the Land Information Warfare Activity 
(LIWA) at Fort Belvoir, Virginia, to develop both concepts and capabilities for 
IO, and LIWA personnel have been active in the Balkans for much of the 1990s, 
assisting Army IO efforts there. The Navy views IO as something that enables 
fleet operations and makes those operations more efficient and effective. The 
Navy's perspective on IO also reflects the expertise and experiences of several of 
its different "communities," with two in particular, space/electronic warfare 
and cryptology, as having special interest and impact on IO. The Navy has two 



51 



Infoimation Operations, Information Warfare, and Computer Network Attack 



key organizations, the Fleet Information Warfare Center (FIWC) at Little 
Creek, Virginia, and the Naval Information Warfare Agency (NIWA) at Fort 
Meade, Maryland, dedicated to its efforts to develop IO. While the Marine 
Corps does not have a specific IO doctrine or organization, it sees IO as larger 
than merely another weapon or tool to be used when appropriate, as something 
that makes the entire range of Marine Corps capabilities and operations more ef- 
ficient and effective. Finally, the Air Force has perhaps the most visionary ap- 
proach to IO, with several doctrinal publications that explicitly focus on the 
information realm as an arena for combat and as an operational environment in 
which operations needed to be coordinated with and integrated into those in the 
air and outer space. It, too, has made organizational changes, and was the first 
service to dedicate an organization to the effort, recasting the existing USAF 
Electronic Warfare Center into the Air Force Information Warfare Center 
(AFIWC) in 1993. 36 None of these approaches are "right" or "wrong," but they 
do reflect the perspectives of warfare and warfighting held by their originating 
services. While some will see narrow parochialisms at work here, it would be 
more optimistic to think that from these differing perspectives will come a more 
robust, richer and more comprehensive concept for IW and IO than we have at 
present. 37 

In a simpler time, "joint" would have meant the four services acting in uni- 
son, but that is insufficient for effective IO. Not only are there a range of 
non-service DoD organizations that are critical to the military's ability to wage 
IW, using the previously-cited definition of IO means that virtually the entire 
apparatus of the federal government is involved in some way with the national 
security exercise of information power. While perhaps only a handful of federal 
organizations would be involved with CNA, others would be involved with 
CNE, and virtually every one with CND, because in the information age every 
organization is increasingly dependent on its electronic and computerized infor- 
mation networks for its efficient functioning. One of the most critical, if little- 
noticed, segments of PDD 63 was the tasking of each federal department or 
agency's chief information officer (CIO) with the responsibility for information 
assurance within that organization. This ties into another of PDD 63's critical 
actions, the assignment of specific segments of the government to work with 
their private sector counterparts (Department of Energy with the electric indus- 
try, for example) in developing the strategic partnership called for in the docu- 
ment. The latest National Security Strategy (December 2000) contains repeated 
references to the critical importance of safeguarding national infrastructures 
from intrusion or attack, whether that attack comes from the physical world or 
via CNA. 

52 



Daniel T. Kuehl 



While some feel that the US military's interest in IW and IO is a reflection of a 
peculiar American affinity for technology and the degree in which information 
technology is embedded within our systems and structures, the growing interest 
of the rest of the world indicates that IW/IO is not solely an American issue. 
While this is neither the time nor place to make a detailed exploration of 
non-US perspectives on IW/IO, a few examples are in order. The British mili- 
tary has been pressing ahead both operationally and educationally, as have most 
of our other English-speaking allies, and their interest has included the pressing 
need to provide CND to counter the threat of CNA against vulnerable infra- 
structures. 38 Several other governments, including that of Norway, have un- 
dertaken specific PCCIP-type studies of their own national infrastructures 
because of the growing awareness that national security, including economic 
health and prosperity, depends on the smooth and confident functioning of 
these computer networks. The Swedish National Defense College (Forsvar- 
shogskolan) has integrated IO into the core of its curricula, and the other Scandi- 
navian countries are following suit. The Russian and Chinese perspectives have 
already been cited, albeit too briefly, and the views of one senior Indian national 
security strategist are enlightening. Major General Yashwant Deva recently 
wrote that the "metaterritorial" nature of IW was blurring the boundary be- 
tween peace and war, and he argued that India's national security strategy must 
have an information strategy component to be effective. 39 These are perceptive 
insights from a country possessing the world largest "Silicon Valley" and one 
which is a global leader in information technology. Finally, the rapidly increas- 
ing use of cyberspace and computer networks for political objectives by 
nongovernmental organizations, whether they be humanitarian groups such as 
the Red Cross, political and environmental activists such as Greenpeace, or rev- 
olutionary groups such as the Tamil Eelam (Sri Lanka), Zapatistas (Mexico), or 
Hezbollah (Middle East), poses an interesting problem for governments and su- 
pra-national organizations that are uncomfortable working outside of the tradi- 
tional and terrestrial boundaries of national security. In cyberspace all actors look 
somewhat alike, and as some recent incidents such as the Solar Sunrise case have 
illustrated, it can be very difficult to determine if the intruder is a lone individual 
or the agent of a State acting for State-sponsored purposes. 

Concluding Thoughts 

Those old enough to remember sayings and slang from the war in Southeast 
Asia may recall one that went "When you're up to your backside in alligators, it's 
kind of hard to remember that your initial mission was to drain the swamp." 

53 



Information Operations, Information Warfare, and Computer Network Attack 



Right now, in the field of information warfare, we are hip-deep in the swamp of 
unresolved issues, and there are a number of alligators circling. At the outset of 
this discussion we faced the Clausewitzian paradigm of warfare, which was based 
in part on the concept that wars are waged by "warriors" in service of identifi- 
able States. In a postulated paradigm of war by keystroke, are those that operate 
from the keyboards to be considered "warriors?" We have seen examples in 
which young hackers, skilled at moving from database to database via cyber- 
space, never physically leaving their keyboards, have been inducted into the 
armed forces of their home countries. 40 Could this be used to provide a cadre of 
super-skilled operators who now have the technology of States at their fin- 
gertips, instead of what they can afford from Radio Shack? One thinks of the case 
of the Dutch hackers who vainly offered their services to Saddam Hussein during 
the Persian Gulf War. Could such individuals, if acting in the interests and behalf 
of a State, be considered cybermercenaries? 41 Equally plausible is the potential for 
them to act on behalf, not of a recognized State, but of some other interest group, 
whether it have political, religious, or even simply monetary motivations. 

Our existing paradigm for war requires kinetic actions, destroying things, or 
crossing physical boundaries with physical objects such as airplanes or tanks. 
What are the political and legal regimes for actions that do not cross the physical 
limits of territorial sovereignty or cause kinetic destruction, but still have serious 
impact on the national security of the "attacked" State? Where are the lines of 
sovereignty in cyberspace, and how does the State respond to the provocations 
and intrusions of what may be a shadowy and virtual opponent? More and more 
of the key infrastructures that support civil society also support, in a strategic 
sense, the military power and capability of the State. Electric grids, oil and gas 
pipelines, transportation networks, and telecommunications are just some of 
those dual-use infrastructures and architectures that support both civil society 
and military strength. Those kinds of assets have been attacked and destroyed in 
wartime before, and they will be again, but what is the impact if the means of ne- 
gation comes across the Internet in the forms of bits and bytes? Just as troubling is 
the question of who can and should defend those infrastructures? National 
armed forces protect them against attack by "traditional" military means, but 
does this mission extend into cyberspace? In the United States the answer from 
PDD 63 seems to be that this is a shared public sector-private sector responsibil- 
ity that will require the coordination and cooperation of those communities to 
solve the problem of infrastructure vulnerability, but this may not necessarily be 
the answer in other countries that have different political-economic systems and 
traditions. These are just a sample of the questions and issues to be discussed and 
analyzed in the pages of this volume. 

54 



Daniel T. Kuehl 



For more than a century and a half, from the era of Napoleon and Clausewitz, 
to that of strategic bombing and national liberation organizations, western polit- 
ical society has had a paradigm of warfare that has focused on the means em- 
ployed: force and violence, employed to defeat or destroy the enemy's powers of 
physical resistance. Information "in war" is a continuation of this paradigm, and 
thus — as important as those capabilities are for the capability to employ tradi- 
tional military force — is incomplete because of the new capabilities for influ- 
ence, power, and the imposition of will offered by the new information 
technologies. Information warfare and information operations do not replace 
the older forms, but they do augment, modify, and change those forms. The dif- 
ference between the terms is important, even vital, and we dare not ignore it, lest 
an adversary who lacks our bureaucratic and intellectual shackles and does not 
"understand our rules" use our very dependence on computer networks to ad- 
minister a nasty strategic defeat via the very same environment and metanetwork 
we are so confidently constructing. 

Notes 

* The views expressed in this paper are those of the author and do not reflect the official policy 
or position of the National Defense University, the Department of Defense, or the United States 
Government 

1 . I am indebted to Lieutenant General Mike Hayden, Director of the National Security 
Agency — the DIRNSA — for this very descriptive phrase. 

2. This author first met Dr. Rona and heard his concepts during a presentation on June 13, 
1994, at the Information Resources Management College, National Defense University, in 
Washington DC. He defined IW as "the sequence of actions undertaken by all sides in a conflict to destroy, 
degrade, and exploit the information systems of their adversaries. Conversely, information warfare also 
comprises all the actions aimed at protecting information systems against hostile attempts at destruction, 
degradation and exploitation. Information warfare actions take place in all phases of conflict evolution: peace, 
crisis, escalation, war, de-escalation and post conflict periods." Dr. Rona, a gentle man and brilliant 
analyst, unfortunately passed away in December 1997. For an example of his work, see Weapon 
Systems and Information War, a study prepared for Boeing in 1976. 

3. This author vividly remembers the initial classroom meeting of the School of Information 
Warfare & Strategy's first group of students in August 1994, during which the sixteen students 
reacted with dismay to the plethora of official and unofficial definitions of information warfare. 
Some argue that any attempt to formally define IW is premature and counterproductive; others 
argue that some degree of consensus is essential, emphasizing that unless the different organizations 
that are involved in the issue have some common language and currency, any attempt to develop 
and execute plans and operations that not only span the entire government, but also involve the 
private sector and international community as well, are doomed to frustration and failure. While 
this author agrees that trying to put a "stone tablet on the wall" degree of finality on the 
terminology of IW is futile because the discipline is still evolving, some kind of terminological 
commonality is vital, even if it only provides a common target that all parties agree is "wrong." 

4. While the Directive itself is classified Secret, this definition is unclassified. 



55 



Information Operations, Information Warfare, and Computer Network Attack 



5. One of the reasons for the creation of the term IO is the visceral dislike and mistrust of the 
word "war" by many of the agencies and people who are beginning to find that the information 
age envelops their activities and mission. Thus the creation of a term — IO — that points at the 
larger arena in which information activities are conducted, but does not tie those operations so 
visibly to the military and warfare. 

6. See Chairman of the Joint Chiefs of Staff, Joint Publication 3-13, Joint Doctrine for 
Information Operations (1998), for these and other related definitions. 

7. See Field Manual 100-6, Information Operations, (US Army Training and Doctrine 
Command, or TRADOC) (Aug. 1996); see also Air Force Doctrine Document 1 , Air Force Basic 
Doctrine, (USAF Doctrine Center) at 31-32 (Sept. 1997); the Air Force's IO doctrine manual, 
AFDD 2-5, Information Operations (Oct. 1998). 

8. See the author's Defining Information Power, Strategic Forum #115, Institute of National 
Strategic Studies, National Defense University, 1997, www.ndu.edu. 

9. See National Security Decision Directive (NSDD) 130, US International Information 
Policy (March 6, 1984). The concept described above is based on NSDD 130, but paraphrases it 
and expands on some of its key components. 

10. DANIEL R. HEADRICK, THE INVISIBLE WEAPON: TELECOMMUNICATIONS AND 
INTERNATIONAL POLITICS, 1851-1945, at 140-141 (1991). For Radio Free Europe's role, see 
Kevin J. McNamara, Reaching Captive Minds with Radio, ORBIS, Winter 1992, at 23-40; Walter 
Laqueur, Save Public Diplomacy, FOREIGN AFFAIRS, Sept.-Oct. 1994, at 24. For Russian views, 
see Tim Thomas, Dialectical Versus Empirical Thinking: Ten Key Elements of the Russian Understanding 
of IO, JOURNAL OF SLAVIC MILITARY AFFAIRS, March 1998 at 40-62. 

11. While it is impossible to say when the term "cyberspace" was first used, several authors 
stand out as being among the leaders. William Gibson's classic work of science fiction, Neuromancer 
(1984), first raised the concept of humans seamlessly operating within a cybernetic, virtual-reality 
environment, while Nicholas Negroponte's book Being Digital (1995) is an exploration of the 
impact of cyberspace on our daily lives. The term itself has only recently come into widespread 
use. A search of several automated databases, for example, covering the years 1986—89 and 
1986—91 contained only 17 "hits" on the term! 

12. Of course, outer space can be measured in a scientific sense, but not in terms which are 
useful in a lay sense. 

13. The question of where the borders of cyberspace lay is an intriguing one. Michael Benedikt 
has written perceptively on it in his book Cyberspace: First Steps (1991), while the late Anne Wells 
Branscomb in a recent monograph, Cybercommunities and Cybercommerce: Can We Learn to 
Cope? (Harvard University, Program on Information Resources Policy), suggested that the 
borders of cyberspace are discernible at the interconnection points between segments of the 
Internet, with network managers and systems administrators acting as the border guards, in a sense. 

14. This construct omits communication methods such as signal flags, smoke signals, drums, or 
even heliograph because they did not require manipulation of the electronic environment. 

15. Thomas Kuhn, The Structure of Scientific Revolutions (1970). 

16. This warning system used Air Force Space Command's space-based platforms to note Iraqi 
Scud missile launches; US Space Command to assess the indications; and Patriot missile systems 
operated by US Central and European Commands to engage the Scuds. This system thus crossed 
several physical boundaries (outer space, several oceans, the atmosphere, and cyberspace), national 
boundaries (the United States, Israel, and Saudi Arabia, at a minimum), and organizational 
boundaries (one service major command and at least three joint Unified Commands), all at the 
speed of light. This example illustrates a few of the capabilities, opportunities, and difficulties of 
warfare in the information age. 

17. JV2010 is available electronically at vvrww.dtic.mil/jv2010/. 

56 



Daniel T. Kuehl 



18. This runs into the strawman view that since only a small minority of the world's population 
currently has immediate access to the Internet it is unimportant. One counter to this is that in 1776 
only a certain segment of the American population supported the American Revolution, or could 
even read the Declaration of Independence, yet who would argue that document's political 
significance? 

19. CJCSI 6510.1, Defensive Information Warfare Implementation (May 31, 1996). 

20. Richard S. Berardino, SCADA and Related Systems: Critical and Vulnerable Elements of 
Domestic Components of National and Economic Security, unpublished research paper on file 
with author at National Defense University. 

21. See the Washington Post, Feb. 24, 1996, at 4, for a detailed analysis of the accident. 

22. For the PCCIP, see the Commission's report, Critical Foundations: Protecting America's 
Infrastructures, which at the time of this writing is electronically available via the website of the 
Commission's follow-on organization, the Critical Infrastructure Assurance Office, or CIAO, 
www.ciao.gov. The concept of "infrastructural warfare" has even generated an electronic journal, 
The Journal of Infrastructural Warfare, www.iwar.org. 

23. See also Office of the General Counsel, Department of Defense, An Assessment of 
International Legal Issues in Information Operations (Nov. 1999). The paper is appended to this 
volume as the Appendix. 

24. Two recent and very good examples of this are DOROTHY DENNING, INFORMATION 

Warfare and Security (1998) and Edward Waltz, Information Warfare: 
Principles and Operations (1998). 

25. See Lisa Hoffman, US Opened Cyber- War During Kosovo Fight, WASHINGTON TIMES, Oct. 
24, 1999; Frederick H. Levien, Kosovo: an IW Report Card, JOURNAL OF ELECTRONIC DEFENSE 
(Sept. 1999), www.jedonline.com. 

26. A lengthy and growing bibliography exists on the subject of infrastructure vulnerability. A 
recent contribution from the Center for Strategic and International Security (CSIS) is 

Cybercrime . . . Cyberterrorism . . . Cyberwarfare . . . Averting an Electronic 

WATERLOO (1999); a growing number of official studies and reports echo this theme, including 
several from the General Accounting Office, as well as congressional hearings. See, e.g., Security in 
Cyberspace: Hearings Before the Permanent Subcommittee on Investigations of the Committee 
on Governmental Affairs, US Senate, 104th Congress, May 22-July 16, 1996. 

27. See CARL VON CLAUSEWITZ, On WAR, Bk. 1, Ch. 1, for his complete analysis of these 
relationships. 

28. See JAY LUVAAS, THE MILITARY LEGACY OF THE CIVIL WAR: THE EUROPEAN 
INHERITANCE (University of Kansas Press, 1988; originally University of Chicago Press, 1959) 
for the best discussion of how the European powers essentially ignored the lessons of the war of 
1861-1865. 

29. Actually, "Rosie" only built Liberty ships, not U-boats; one of the signal failures of the Nazi 
regime was its reluctance to significantly tap into this source of labor, one that the democracies fully 
exploited. 

30. For a good discussion of this, see ED MANN, THUNDER AND LIGHTNING: DESERT 

Storm and the Airpower Debates (1995). 

31. For a discussion of the Air Force's doctrinal distinction between "information warfare" and 
"information in warfare," see Air Force Doctrine Document (AFDD) 2-5, Information 
Operations (1998). 

32. See China's Military Plots 'Dirty War' Against the West, LONDON SUNDAY TELEGRAPH, 
Oct. 17, 1999; see also the longer explanation in the Foreign Broadcast Information Service 
translation from HONG KONG TA KUNG PAO, Sept. 19, 1999. 

33. See the JV2010 website, supra note 17. 



57 



lnfonnation Operations, Information Warfare, and Computer Network Attack 



34. See 1 H WIN ANT BATTLESPACE KNOWLEDGE (Stuart J. Johnson & Martin C. Libicki, eds., 
1995); DavidS. Alberts. John J. Garstka, & Frederick P. Stein, Network Centric 

WARFARE: DEVELOFING AND LEVERAGING INFORMATION SUPERIORITY (1999). Both are 
available electronically via the DODCCRP website at www.dodccrp.org. The latter book is an 
expansion of the concept first promulgated by Admiral Arthur K. Cebrowski in Network Centric 

Warfare, US Naval Institute Proceedings, (Jan. 1998), at 28-35, www.usni.org. 

35. For a fuller discussion of this, see the compilation of RMA-related articles in the Summer 
1998 issue of JOINT FORCE QUARTERLY, www.dtic.mil/doctrine. 

36. See Field Manual 100-6, Information Operations (1996); Chief of Naval Operations 
Publication, Navy Information Warfare Strategic Plan (1998); Major General J. E. Rhodes, A 
Concept for Information Operations, MARINE CORPS GAZETTE (Aug. 1998); USAF Doctrine 
Documents (AFDD) 1 and 2-5 (1997 and 1998 respectively). The USAF renamed the AFIWC as 
the AF Information Operations Center (AFIOC) in 2001. 

37. See the author's Joint Information Warfare: a Paradigm for Information-Age Jointness, 
Strategic Forum #105, Institute of National Strategic Studies, National Defense University, 
March 1997, www.ndu.edu. 

38. See, e.g., Adam Cobb, Thinking About the Unthinkable: Australian Vulnerabilities to 
High-Tech Risks, Research Paper #18, 1997-98, Department of the [Australian] Parliamentary 
Library, Canberra, Australia, June 29, 1998. 

39. Yashwant Deva, National Perspective on Information War, JOURNAL OF THE UNITED 

Service Institution of India, Jan.- March 1998. 

40. It is interesting that young Ehud Tenenbaum, the "Analyzer" from 1998's well-known 
Solar Sunrise incident, was called up for military service in the Israeli Defense Forces shortly 
afterwards. What service he is performing for the IDF is not known. 

41. Only relatively recently in history have mercenaries acquired the general approbation 
which they now enjoy. After aD, the first great victory of the American Continental Army, the day 
after Christmas, 1776, was at the Battle of Trenton. Washington's opponent: the Hessians, hired 
by the British crown. 



58 



V 



International Law, Cybernetics, 
and Cyberspace* 

Anthony D'Amato 



M 



y pleasant assignment this morning is to talk about the future of com- 
puter network attack under international law. Any prediction is diffi- 
cult to make, but the hardest thing of all to predict is the future. If I wanted to 
play it safe I would just stand here and be quiet for thirty minutes. Yet we all 
know that if there is one prediction that can be asserted with a confidence level 
of 100%, it is — no matter what the topic might be — any law professor in this 
country who is given the job of talking about it will talk about it. 

There has already been a lot of talk this week about rules of international law, 
and I sense a certain amount of discomfort about the old, received rules of inter- 
national law. We have been cited rules dating from 1949, 1945, 1929, and back 
as far as 1 907 and 1 899. Somehow they seem archaic when compared with a rev- 
olutionary new technology. Professor Yoram Dinstein has advised the conven- 
ing of an international conference to update the old humanitarian rules of 
warfare. But pending the replacement of existing rules by new ones, Professor 
Dinstein contends that the existing rules will serve us well enough if we apply 
them as written. He appears to view these rules as a kind of international 

* Address delivered at the Symposium on Computer Network "Attack" and Interna- 
tional Law, Naval War College, June 1999. 



International Law, Cybernetics, and Cyberspace 



legislation. I do not completely share that point of view. Perhaps this betrays my 
common law bias, but I think there is a kind of spirit of international law that 
shapes the rules on the books and provides a basis for interpreting them. 

This spirit is evolutionary. Being aware of it gives us a basis for predicting how 
the rules of international law may bend and change to fit new situations. Since 
any international crisis will appear quite different to decision-makers on the in- 
side than all the previous ones they have experienced, simulated or studied, it is 
indeed a kind of rigid thinking to say we should treat this crisis by applying the 
same rules we applied to the last one. It would be somewhat like accusing gener- 
als of fighting the previous war. But rules of law are like that; as words on a paper 
or on a screen, they do not change by themselves, they stay the same. And they 
were obviously fashioned to cover past situations. Thus, I argue that we cannot 
take our stand solely upon the rules of international law as written. These rules 
have to be interpreted in light of new circumstances. 

And yet it is clear that if we simply change the old rules to apply to new situa- 
tions, the rules will be sapped of all their vitality. There is no use having any rules 
of law at all if they can be changed at will; that would amount to anarchy. There- 
fore, I want to argue that we are constrained in the degree of latitude that we can 
give to the interpretation of old rules to fit new situations. And this constraint 
comes, I argue, from a good faith appreciation of the structure of international 
law itself. 

What is the structure of international law? We begin by recognizing that it is, 
and must be, a self-perpetuating coherent set of rules that operate within the 
arena of international relations. Because it is dependent upon a multi-State envi- 
ronment for its own existence, international law consists of rules that are de- 
signed to maintain the peace and stability of those States, for total anarchic war is 
the absence of rules. International law opts for stability by ensuring that its rules 
minimize the friction among States and provide for peaceful resolution of dis- 
putes. If war breaks out despite its rules, then international law attempts to con- 
tain the war, minimize the damage caused by war, and provide for a secure peace 
following the war. An example of a set of international legal rules providing for 
the containment of war are the complex and realistic rules of neutrality, fash- 
ioned over centuries, which specify the acts that neutral nations may or may not 
take during a war in order to maintain their neutrality. And a classic example of a 
rule favoring an agreement to stop the war is the rule that treaties of peace are 
valid even though the losing side could be said to have been coerced into signing 
the treaty by the threat of continued war if it did not sign. 

Although the content of the rules of international law has not changed quali- 
tatively over the course of the past five thousand years, existing rules have been 



60 



Anthony D'Amato 



adjusted and modified to meet new situations and contingencies. This adjust- 
ment operates through an elaborate system of customary law that modifies rules 
in light of feedback mechanisms. These mechanisms include courts, foreign 
offices interacting with each other (the " dedoublement fonctionnel") , diplomatic 
communications, international legal conferences and codification conventions, 
negotiations of bilateral and multilateral treaties, and so forth. International law 
is, in brief, a cybernetic system. Its rules are useful only if they are func- 
tional — that is, only if they promote the stability of the system. The feedback 
mechanisms, which are the hallmark of cybernetic systems, continuously mea- 
sure whether rules of the system operate to resolve disputes rather than aggravate 
them. If a rule has a tendency to aggravate disputes, then it is reinterpreted, mod- 
ified, or in drastic cases overruled and replaced by a rule that stabilizes the system. 

It follows that too rigid an interpretation of any given rule could lead to a 
rupture in the system. Let me call an absolutely rigid interpretation a "robotic" 
interpretation. A robot will interpret a rule exactly, without taking into ac- 
count its real- world consequences. 1 For example, the Standing Rules of En- 
gagement for US Forces of October 1, 1994, provides in its first rule that a 
military commander has the right to use all necessary means to defend the mili- 
tary unit, and that none of the remaining rules in the ROE can limit this inher- 
ent right. If a robot were programmed with this rule alone, it would not 
hesitate to employ a hugely disproportionate weapon in the defense of its unit, 
including a nuclear missile that could start a global conflagration. Thus, the first 
rule of the ROE cannot be given a robotic interpretation. The rule is instead 
directed to a commander who is familiar with many other rules within the 
ROE, with the requirements of warfare, and with the general principle of mil- 
itary proportionality. In short, the rule on the books was made by humans with 
the often unarticulated premise that humans like them would interpret the 
rule. A military rule presupposes a military interpreter. 2 

Sometimes the laws of war build terminological flexibility right into their 
own language. Many of the older rules of warfare, for example, prohibit acts that 
are "not justified by military necessity." Such rules also betoken the good mili- 
tary judgment of a human being. Legal restraints on warmaking stem from the 
need to keep the international system stable. Many years ago Quincy Wright put 
this another way: the goal of the military during a war is not just to win the war 
but to win the subsequent peace. If force is used that is not justified by military 
necessity, the seeds will be sown of future revenge; hence, a stable peace may not 
have been secured. "Military necessity" should be construed as "necessary to 
win the engagement at hand" and not to demonstrate brutality by unrestrained 
killing of enemy civilians. 

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The cybernetic system of international law is thus a purposive system. Its rules 
cannot be interpreted literally or applied mechanically because each rule is sim- 
ply an indication of how the system should deal with disruptions that may arise. 
Our bodies are purposive systems; if surgery is needed to remove a tumor, the 
surgeon operates with as little damage to the surrounding tissue as possible, for 
obviously the idea is to remove the tumor and not to kill the patient. A ship is an 
example of a self-contained purposive system. The primary purpose of a purpos- 
ive system is survival — persistence through time. 

In order to survive, purposive systems attempt to maintain systemic equilib- 
rium. When our bodies are invaded by a flu virus, our temperature rises so as to 
provide a hostile environment for the invaders; when the virus is defeated, our 
temperatures return to normal. Similar servomechanisms exist on larger military 
vessels; a torpedo hit on the hull may trigger an automatic seal-off of the com- 
partment that is being flooded. A thermostat is one of the simplest servomecha- 
nisms; there are many more we can think of. 

Purposive systems are able to survive and to reverse disequilibrating interrup- 
tions because they have elaborate internal communications systems. We do not 
have to tell our bodies to raise our temperature; our blood stream carries the mes- 
sage of outside virus invaders to our central nervous subsystem which communi- 
cates with the subconscious parts of our brains and in effect turns up the heat. On 
board a ship, the internal communications are elaborate and highly structured to 
carry messages of the ship's condition to all hands. There are fail-safe mechanisms 
that operate by default in case the intra-human messages are disrupted. 

he communications on board a ship are structured by elaborate rules, jurisdic- 
tional assignments, protocols, and regulations. These constitute the internal laws 
of the system. Any person on board who acts in a way that jeopardizes the sur- 
vival of the ship is immediately arrested; any person who acts to upset the equi- 
librium of the ship is also stopped. All the everyday rules and regulations of the 
ship are designed to actualize the two primary goals of persistence through time 
and the maintenance of systemic equilibrium. 

Just as a ship's rules are designed to maintain the integrity of the floating mili- 
tary unit, the rules of international law are designed to maintain the integrity and 
peace of the States of the world in their international relations. The essence of all 
these rules is the communication of information. Naval rules are worthless un- 
less communicated. The equilibrium of our bodies is maintained by an elaborate 
system of neuron communications into and out of the brain and spinal column. 

My thesis is based upon the signal importance of the communicative aspect of 
rules. Without communication the rules do not work. And if the rules do not 
work, the entire system can break down, with adverse consequences to everyone. 



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The importance of communication in international law is illustrated by one of 
its most ancient rules: the personal immunity of diplomats and ambassadors. Even 
during wartime nations realized the importance of keeping open the channels of 
communication with their enemies. Diplomatic immunity under international 
law is well known. The relation to Internet communications is obvious. I would 
like to discuss a more subtle and perhaps more illuminating practice allowed by 
international law that also has a long history — letters of marque and reprisal. 

Back in the days when there were no international courts, no international 
peacekeeping organizations, and nations did their best to avoid war because of the 
unforeseeable calamities that war could bring, a curious practice of a kind of limited 
private law arose. Key to this practice is what might be termed "unilateral commu- 
nication." A message is sent out that is intended to be received, but a response is not 
required. The message is contained in a letter of marque and reprisal. 

To envisage the situation, imagine five hundred years ago that merchant M 
in nation A was one of a class of rich international traders, importing and ex- 
porting goods. In the course of his trade, M sends a caravan of silks, which he 
purchased in A, into nation B to be sold. With the selling price (in B's cur- 
rency, of course), M intends to buy goods in B that are relatively scarce back in 
A, and transport those goods back to A to be sold there. In every transaction, as 
usual, M takes a percentage for himself. M and his fellow merchants are very 
important to the king of A because taxes on their profits are the king's primary 
source of revenue. 

Now let us assume that a greedy provincial governor in B, seeing the large 
amount of money that M has obtained by selling the silks in his province, decides 
to levy a 100% tax on the money that M's trading activities in B have amassed. 
M's employees in B are simply merchants; they do not have the power to resist 
the provincial governor. As a result, their capital as well as their profits are confis- 
cated and they return to A empty-handed. 

An outraged M reports to the king of A the "denial of justice" within B. But 
the king does not want to start a war against nation B. There are too many risks 
and uncertainties in war, and, in addition, the king simply cannot afford to fi- 
nance an all-out war. True, the king admits, the queen of B does not want war 
either, and for the same reasons. But once a war between two sovereign nations 
is started, who knows what the result will be? 

So we assume that at that point, M offers to mount a private mercenary attack 
against B. In that way, by looting and pillaging, M can get his money back while 
teaching B a lesson. Such an action would probably drive the king into an un- 
wanted war. And the king may not be quite powerful enough to stop M from 
doing it, especially if JV1 recruits his fellow tradesmen to help in the enterprise. 



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International Law, Cybernetics, and Cyberspace 



Thus the stage is set for a deal between the king and M. The king wants M to 
go ahead but in a limited way, one that would be sufficiently justified so that the 
queen of B would not feel honor-bound to go to war to resist it. The only thing 
that would be so justified would be what Aristotle called compensatory justice. 
M should have the right to be compensated for his losses plus the cost of obtain- 
ing that compensation. So the king issues to M a letter of reprisal. The letter 
contains the terms of M's planned expedition into nation B. It specifies the geo- 
graphical limitation of the expedition — in this case, the particular province 
whose governor took away M's assets and profits. It specifies the amount that can 
be recovered — in this case, property and other valuables equal in amount to M's 
losses plus interest plus the cost of paying the mercenaries. It specifies the persons 
against whom the losses can be recovered — in this case, probably, all officials and 
all private citizens in the province, perhaps with officials coming first. The fact 
that innocent civilians are going to be robbed to pay for M's losses is un- 
avoidable. In principle, they should seek recompense from the queen of B, who 
should levy against the governor of the province and who, in the future, should 
ensure that none of his subordinates mistreat foreign traders in this fashion. 

M's motivation in obtaining the letter of reprisal is not so much so that he can 
show it to officials (or the queen) in B during his mercenary expedition there, 
but rather to legitimize his expedition in his home country A. After all, if M pro- 
ceeds without the king's approval, he might eventually return to A only to face 
arrest for his private breach of the peace. Moreover, M's ability to recruit merce- 
naries within A will be greatly facilitated by the legitimacy of the letter of repri- 
sal; otherwise, a potential recruit would reasonably worry about arrest in A 
when the expedition is completed. Therefore, as I have said, the letter is just a 
one-way communication within nation A. It is not necessary for the queen of B 
to read it; its "power" is exhausted once M receives it from the king of A. But if 
M respects the conditions of his reprisal raid into B, then the queen of B can see, 
by the results, that M confined himself to the province of which he complained 
that his assets were confiscated by the governor, and that M helped himself to 
compensatory justice. 

In this fashion, many limited wars were fought under the aegis of letters of 
marque and reprisal. Sometimes the mere issuance of such letters was enough to 
provoke the monarchs of neighboring countries to offer restitution in order to 
avoid the impending mercenary raid into their territory. And naturally, over the 
course of time, the conditions for the issuance of letters of marque and reprisal 
were spelled out in treaties of peace. The Treaty of Westphalia recognizes the 
potential legitimacy of limited armed attacks as reprisals for denial ofjustice. Far- 
ther along in time, reprisal raids were replaced by judicial procedures. By the 

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1920s, for example, the United States and Mexico set up a Joint Arbitration Tri- 
bunal which settled all outstanding claims between American citizens against 
Mexico on the one hand, and Mexican citizens against the United States on the 
other. Since payments to the aggrieved plaintiffs were secured by net-net trans- 
actions between the two governments, only the monetary difference at the very 
end had to be paid in specie. 

This subsequent history shows that the early letters of marque and reprisal, 3 
by allowing limited war, operated as a deterrence to general war. When people 
are robbed, they need restitution. When they are robbed by another country, 
the alternative is either war or self-help. The history of the use of letters of 
marque and reprisal constitutes an example of my general point that even a war 
can be, in some circumstances, not systemically disequilibrating, but rather a 
method of preserving and restoring systemic equilibrium. If all wars in the fu- 
ture are intended to be limited wars (we can hardly contemplate a world war in 
this era of weapons of mass destruction, though we must be ever vigilant that it 
will not erupt by accident), then we need to be very careful about preserving 
the communications network that in the past has been instrumental in keeping 
wars limited. 

Thus, I contend that the main lesson for present purposes of this short his- 
tory of letters of marque and reprisal is the importance of communica- 
tion — both internally and externally — as a means of limiting warfare. In 
considering the escalatory potential of destroying computer Internet traffic in 
future conflicts, we should not just look at the disruption of communications 
with the enemy, but also consider the severe negative consequences to our- 
selves if the disruption cannot be pinpointed and spreads to affect the network 
in its entirety. For although a letter of marque and reprisal signified an agree- 
ment between the sovereign and one of his subjects (the king of A and his sub- 
ject M in my example), it was also meant as a communication to a foreign 
country (to the queen of B, in my example). While it was desirable that the 
foreign sovereign read the letter, it was not necessary. Many communications 
today are of this one-way type. In the recent NATO bombing of Yugoslavia, 
for example, NATO leaders held numerous press conferences which they 
were confident were being monitored by Milosevic and others in Belgrade. 
Limited- war aims must be communicated to the enemy whenever possible. 
They must be credible (as, indeed, were the letters of marque and reprisal, 
which were not casually issued by any means). And they must be continuously 
communicated, for when the enemy is suffering its darkest days it must be for- 
tified by the belief that its leadership continues to hold the key to armistice and 
a peaceful settlement. 4 



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International Law, Cybernetics, and Cyberspace 



Of course, no one can foresee what will cause future wars to break out, but 
among the causes that have led to wars has been the need to protect by armed 
force the lives of innocent persons in foreign countries. When those innocent 
lives were a country's own citizens, then intervention to protect them has been 
a common casus belli for several centuries. Only recently has intervention 
extended from nationals to non-nationals. As I contended in an article in 1982, 
intervention of the latter type is designed to protect our "internationals." 5 Our 
internationals are people everywhere, with whom we share a mutual com- 
mitment of protection under the developing international law of human 
rights. 

Once any war has begun, the international system tries to bring the system 
back to equilibrium. Thus, we have in international law the phenomenon of the 
humanitarian laws of war. Occasionally I have had the feeling during this confer- 
ence that some military planners and targeters appear to believe that the laws of 
war are an evil imposed by the lawyers and politicians, and that their job is to ad- 
here to the letter of the rules while violating the spirit. They seem to say that the 
most important goal in war is to win it as soon as possible — and indeed there is a 
logic to that position. Ending a war quickly will often save many lives. The 
problem is that nations that get an upper hand during a war often convince 
themselves that the quickest way to end the war is to terrorize the enemy's civil- 
ian population. I think that General Curtis LeMay's terror bombings of Tokyo 
suburbs in the spring of 1945 were well-intentioned in this regard. Nevertheless, 
those raids constitute, for me, the clearest example of a war crime in the entire 
Second World War. What did the bombing "communicate" to the people ofja- 
pan? That they should surrender unconditionally to an enemy who was ruthless 
enough to drop flaming napalm on women and children living in wooden 
homes? If LeMay believed he was saying, "Surrender now and we won't keep 
on doing this," he may in fact have communicated "Better to die than surrender 
to the devil incarnate." What the humanitarian laws of war do is to take this kind 
of calculation away from those who would emulate General LeMay. The laws of 
war prohibit the deliberate targeting of civilians. I think in the judgment of most 
observers, military and civilian, the exercise of this kind of restraint during a war 
is more likely to lead to a quick peace and, similarly, to a lasting peace. 

Moreover, from the international systemic viewpoint, given the fact that war 
itself may be a necessary equilibrating adjustment to preserve deeper systemic 
values, prolonging a war is not necessarily a bad thing. It may be important for 
systemic value preservation to prosecute the war the right way even if doing so 
prolongs the war. This is perhaps a deeper reason for ruling out the deliberate 
terror bombing of civilians. 



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Anthony D'Amato 



But the viewpoint of the international system is not the only possible 
viewpoint. You can obtain the same result from the point of view of a nation 
looking outward at the international system. For if the maintenance of the sys- 
tem is necessary for lasting peace and order, then each nation partakes of that sys- 
temic goal in its own foreign policy. The systemic viewpoint is primarily a useful 
heuristic that enables us to predict the ways in which the system itself strives to 
maintain its equilibrium. Once we have identified the ways, each country's na- 
tional interest is served in facilitating them. 

I have mentioned so far the rules of diplomatic immunity and the history of 
letters of marque and reprisal as two of the ways that the international system rec- 
ognizes disruptions to the system and is able to communicate effectively to re- 
store equilibrium. A third mechanism is that customary international law 
permits espionage. Although each nation may punish spies, they are often ex- 
changed for a nation's own spies who have been caught by the exchanging 
country. It would have been easy for international law to have generated a rule 
prohibiting espionage, but the fact that it allows for espionage is a further strong 
affirmation of the importance of the exchange of information. There have been 
many instances in which a nation's military posture appeared bellicose to a 
neighbor, yet intelligence networks exposed the reality that there was no belli- 
cose intention. Without that information, the neighboring country might have 
launched a preemptive attack, starting a war by mistake. Even when a nation is 
attempting to start a war against its neighbor, the international system is well 
served by intelligence information that allows the neighbor to get prepared for 
an attack. Preparation often dissuades the attacker from going ahead. None of 
this is to say that the exchange of information prevents all wars from breaking 
out. But it has stopped some wars that would have been the result of a mutual 
mistake, and it has served to limit wars that have already broken out by convey- 
ing information as to military intentions. 

In recent years observers have been somewhat surprised by the slow and de- 
liberate way the Security Council has conveyed to countries such as Iraq and 
Yugoslavia the intentions of the major powers if those countries did not cease 
and desist their unlawful acts. The clarity of communications is probably respon- 
sible for a greater reduction in casualties than would have occurred if the UN's 
motives and intentions had been kept secret. 

Where do these arguments lead, in terms of international law? They lead me 
to predict that attacks on the Internet will soon be seen as clearly illegal under 
international law. Maybe customary international law has already reached that 
position. No matter what short-term military advantage might be seen in dis- 
rupting another country's Internet system, the disruption may spread to the 



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International haw, Cybernetics, and Cyberspace 



point where it is totally counterproductive. But even if it can be kept con- 
tained within the target State, it nevertheless violates, in my view, the interna- 
tional system's attempt to end the war and win the peace. In a sense — although 
I do not want to be taken literally on this — disrupting the Internet is like 
unleashing biological warfare: the limits are unpredictable and the method is 
inhumane. What is inhumane about disrupting a target State's Internet com- 
munications is that it deprives innocent people within that target State from 
the only possibly effective means they have of obtaining external information 
and using it to communicate with each other, possibly to oppose the war from 
within. In the recent NATO attack on Belgrade, some citizens of that city 
were able to obtain news of the war from nongovernmental sources. 6 Unfor- 
tunately NATO targeted some of the Belgradian communications facilities. I 
think that was a mistake; it set a precedent that could backfire and it did not 
noticeably shorten the war. 7 Whether that targeting was illegal is not a ques- 
tion that will be addressed in any foreseeable forum. But I believe that in- 
formed international legal opinion will in the near future weigh in on the side 
of the illegality of attacks against the Internet. 

I believe this because the stability of the international system is dependent 
upon the free and efficient flow of information within and among the units that 
make up the system. The more freedom of international communication we 
have, the less the likelihood of war and other disruptions to the stability of the inter- 
national system. The global Internet, with its already achieved interconnectivity 
across national boundaries, is a natural heir to the rules of diplomatic immunity, 
letters of marque and reprisal, legality of espionage and intelligence-gathering, and 
many other communicative aspects of international law. 

I am not claiming that during a war there would be a prohibition against dis- 
rupting the enemy's command-and-control communications system. If that sys- 
tem is separate from the Internet, it is fair game as it always has been. However, if 
the enemy is instead using the Internet itself for its military command and con- 
trol system, then why disrupt it when a better alternative is to break through its 
code? Of course, in an actual conflict the military commander on the ground 
will decide whether such an alternative is better. That is why I am making the 
stronger point that a rule of absolute prohibition of Internet disruption is in the 
best interests of both sides in the long run and therefore is likely to be soon rec- 
ognized as a foundational principle of international customary law. 8 

Finally, I predict that in the near future we will see massive public support 
throughout the world for the inviolability of the Internet. Although a very re- 
cent phenomenon, the Internet in my view is securing for itself a place in public 
consciousness that will be impossible to dislodge. Indeed, the Internet has 



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Anthony D'Amato 



become one of our vital national interests. It will be something we will have to 
protect in the event of a war. It is not just a mechanism like previous communi- 
cations systems (the telephone, the radio, and television). Instead, it has fostered 
a new kind of community awareness and empowerment. 

I hope it does not sound too much like science fiction to say that some people 
already are living in virtual communities. Their chat room partners come from 
all over the world, people who share similar interests. We will see an increasingly 
specialized and fine-tuned system of chat rooms where we will be able to see on 
our computer screens the faces of the people with whom we are communicat- 
ing^ — GeoCities in real time in full color. People who live in these virtual com- 
munities also live in real communities; they have dual citizenship. A person can 
be an American and also a citizen of America On-Line; another can be a citizen 
of Ecuador and Excite; another of the Netherlands and Netscape; and another a 
dual citizen of Yemen and Yahoo. People are now able to buy and sell goods di- 
rectly from each other — foodstuffs from exotic places, native works of art and 
artifacts (which are skyrocketing in price on the Internet), travel, and services. 
People can play games against opponents from all over the world. Many people 
are finding the Internet passionately consuming of their spare time, and others 
are finding a way to make a living on the Internet — either creating technology, 
or investing, or buying and selling, or providing the one thing in business trans- 
actions that computers are still deficient in — a human touch. 

I have exaggerated my point, of course, but in this risky game of prediction we 
sometimes have to think outlandishly. As the world shrinks in size, as commun- 
ication and knowledge-sharing become the key concepts of the twenty-first 
century, the Internet will increasingly be valued as a precious resource, the 
"heritage of mankind" in the words of international law. For this reason, as well as 
the systemic considerations I outlined earlier, I think that computer network attack 
will soon be the subject of an outright prohibition under customary international law. 

Notes 

1. Of course, a list of "real world consequences" can be programmed into the robot in the first 
place, in which case the robot will take those consequences into account. But if the consequences are 
not foreseen by the human programmer at the time of the programming — which is the usual case in 
war where surprises are part of the strategy of war — then the robot will simply not know about them 
and will not take them into account. At the present and reasonably foreseeable state of computer 
technology, a computer cannot "see" and "analyze" the real world and "evaluate" whether a given 
operation could be counterproductive in terms of its foreseeable real world consequences. 

2. It is not clear, however, whether the rules contained in the Internal Revenue Code 
presuppose human interpreters, even though it is often claimed that IRS agents are human 
interpreters. 



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International Law, Cybernetics, and Cyberspace 



3. Even the Constitution of the United States gives Congress the power to issue letters of 
marque and reprisal (although the power was actually exercised only during the sea war of 1800 
with France, and it was not a "classic" situation of self-help, but rather a roundabout way of 
enlisting the help of private vessels in a national war). 

4. Controversy remains whether the Allied insistence upon "unconditional surrender" 
unnecessarily prolonged World War II. Of course, in 1945 German and Japanese leaders did not 
know about the potential of being tried as war criminals. If they had been able to foresee 
Nuremberg and the Military Tribunal for the Far East, would they have surrendered at all? I discuss 
some of the problems of negotiating a peace when the negotiators themselves may find themselves 
indicted for war crimes once the peace is established in Anthony D'Amato, Peace v. Accountability in 
Bosnia, 88 AMERICAN JOURNAL OF INTERNATIONAL LAW 500 (1994). 

5. Anthony D'Amato, The Concept of Human Rights in International Law, 82 COLUMBIA LAW 
REVIEW 1110 (1982). 

6. It was in NATO's interest to accurately inform Serbian citizens about the war and about 
NATO's limited war aims. Consider what happened in the first half of 1945 in Japan. The Japanese 
people were incessantly reassured by the press that the Allies were on the verge of being beaten and 
peace was imminent. Well, the papers were right about the imminence of peace, they just had the 
sides mixed up. If the Internet had been invented at that time, there would have been no way for 
the Japanese people to have been fooled by the Japanese controlled media. Our campaign to 
demoralize the Japanese people could have been accomplished more swiftly and with considerably 
less loss of life. In the aftermath of the Kosovo air campaign, Loral Space and Communications 
Limited said it might be forced to cut transmissions into Yugoslavia from one of its satellites under 
the general trade embargo that was proposed by the United States. Fortunately, State Department 
spokesperson James Rubin quickly denied that there were plans to interfere with Internet access 
for citizens of Yugoslavia. 

7. Indeed, the Serbian news sources that remained in Internet communication provided useful 
information to American citizens and the American press. During the recent NATO bombing of 
Yugoslavia, I got my news of the progress of the bombing attacks from Belgrade and other Serbian 
Internet sources. I soon found out that the New York Times and the Washington Post were getting 
their information from the same Internet sources that I was using. What reason did we have to trust 
any of this information when we knew that the Milosevic government was censoring it? Let us take 
a specific case: a building in downtown Belgrade is struck by a missile, and the collateral damage in 
fact kills ten civilians. Now the Serbian Internet could inflate the casualties and say there were 50 
civilians killed. But this kind of inflation, repeated over many bombings, could intimidate and 
terrorize the population of the city, and Milosevic could be counted on not to want to do that. All 
right, take the opposite extreme: they report no civilian deaths. But that falsification would 
encourage NATO to increase the bombardment, figuring that it is a surgically precise destruction 
of Serbian infrastructure with no loss of civilian life. So the safest path, the path of the least chance 
of government interference, is simply to report the accurate number of deaths, in this case ten. And 
as the Times and the Post, and I for that matter, discovered in the course of the war when there was 
independent empirical verification, Serbian Internet information about the bombings was by and 
large rather close to accuracy. 

8. I believe that the United States has far more to lose if our computer networks are attacked 
than we could ever hope to gain by attacking the computer networks of other countries. Earlier in 
this conference someone shrugged off the damage that might happen to our banking and 
brokerage system by saying, "Well, so what if the Dow Jones drops 30%?" If that is all that happens, 
I would agree. But that is not what is going to happen. What will happen is people across the nation 
will find their Internet connections down and the television saying, "Don't worry, you haven't lost 
your life's savings." And they will call their banks and stock brokers and get a busy signal. And the 
word will sweep the nation that credit cards are no longer going to be accepted, and if you have 



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Anthony D'Amato 



some hard cash on hand that is the only thing that will get you food. And there will be riots in every 
city and village, and people will raid the grocery stores and steal all the food. You and everyone else 
will fear that all their money — in banks, in stock accounts, in retirement plans — may have been 
wiped out by the Internet attack. Even if later it turns out that there was enough redundancy in the 
storage system to retrieve many of the financial records, it may come too late to prevent riots and 
insurrections. The dimensions of a national disaster of this kind could far surpass anything in our 
nation's history. 



71 



VI 



Computer Network Attack as a Use of 

Force under Article 2 (4) of the 

United Nations Charter 



Daniel B. Silver 



A 



Introduction 

wareness has been growing in recent years that modern societies, in- 
creasingly computer-dependent, are highly vulnerable to malicious in- 
trusion into their computers and computer networks. Concern about this issue 
is especially high in the United States; in all likelihood, no other country is more 
at risk. The reality of these concerns is underscored by news reports chronicling 
an active "cyberwar" that appears currently to be underway. This is not, how- 
ever, a conflict involving another State or even a terrorist group as the adversary. 
Instead, this struggle pits federal law enforcement officials against computer 
"hackers" who have defaced US Government Internet sites (including the web- 
site of the National Infrastructure Protection Center) and have threatened the 
electronic destruction of Internet servers if the federal government continues 
the battle. 1 

At the moment, the reality of such computer network attack (CNA) by pri- 
vate individuals and non-State actors may be more pressing than the use of CNA 
as an instrument of hostile action by one State against another. Whether CNA 



Computer Network Attack as a Use of Force under Article 2(4) 



actually has been used as an instrument of State action is uncertain as of this writ- 
ing. According to numerous press reports, President Clinton approved a covert 
action against Serbian leader Slobodan Milosevic that was intended to include 
computer network attacks against Milosevic's financial assets held outside Yu- 
goslavia. 2 It also has been reported that General Henry H. Shelton, Chairman of 
the Joint Chiefs of Staff, acknowledged that the United States used CNA against 
Serbian computer networks in the course of the Kosova conflict and that the 
Defense Department is actively engaged in organizing for the coordination not 
only of defensive measures to protect military computer networks from 
"cyberterrorists," but of offensive CNA operations. 3 However, unnamed "se- 
nior defense officials" also have been quoted as saying that the United States re- 
frained from implementing plans to use CNA against Serbian computer 
networks for purposes of disrupting military operations and basic civilian ser- 
vices, due in part to legal guidance from the Defense Department's Office of 
General Counsel that certain uses of CNA could be considered as "war 
crimes. ^ 

Thus, it remains unclear whether the United States attempted to use CNA in 
connection with the Kosova conflict. There is no doubt, however, that the De- 
partment of Defense has made an extensive study of the international legal issues 
that such use could engender 5 and that US military and national security experts, 
looking to the possibility of using CNA in future conflicts, have an understandable 
interest in understanding the implications of CNA under international law. 

Such legal issues can arise under both the jus ad helium and the jus in hello. This 
discussion is confined to the former, specifically to the extent to which peace- 
time use of CNA by or on behalf of a State (including use in the course of 
hostilities that do not attain the status of a war under international law) can be 
characterized as an exercise of "force" under Article 2(4) of the United Nations 
Charter. 6 Because the discussion is limited to this threshold question, it will not 
extend into other areas, in particular, when CNA that constitutes force under 
Article 2(4) might also rise to the level of an "armed attack" under Article 51 of 
the Charter or might be lawfully used as a defense against such an attack. 7 

At the outset, it may be useful to define the "rules of engagement" for this dis- 
cussion. Reisman has pointed out that jurists' formulations, which characteristi- 
cally take the form of "this is the law," often refer "simultaneously and without 
discrimination to descriptions about flows of decisions in the past, predictions 
about the way decisions may be taken in the future, or statements of prefer- 
ence." 8 This criticism seems particularly applicable to statements about interna- 
tional law. It thus is appropriate to make clear what kind of statements this chap- 
ter is intended to make. 



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Daniel B. Silver 



It is too early for any legal authority to have emerged on the status of CNA 
under Article 2(4). Consequently, analysis of the question must proceed on the 
basis of analogy to such possibly relevant authority and doctrine as exists in other 
contexts. The statements about the law set forth in this chapter, therefore, do not 
purport to describe the flow of past decisions directly on point. Nor do they state 
a policy preference unless explicitly identified as such. Rather, they are predic- 
tive of where it appears that existing legal doctrine, found in other contexts, rea- 
sonably would carry a court seized with an issue concerning the status of 
peacetime CNA under Article 2(4). 

The conclusion to which such predictive analysis leads is that there is no 
"bright-line" rule. Instead, certain applications of CNA are likely to be held to 
constitute force under Article 2(4), but many other applications are likely not to. 
This nebulous conclusion may disappoint the proponents of two positions that 
have emerged in scholarly and military circles. The first, focusing on the inher- 
ently malicious and destructive nature of CNA, advocates that it should be con- 
sidered to be a prohibited use of force under Article 2(4) and thus to violate 
international law, except when otherwise authorized under the Charter. The 
second, viewing CNA as having the beneficial potential to achieve military or 
political objectives with less violence than traditional means of warfare, points in 
the opposite direction — CNA (except maybe in its most extreme applications) 
should not be viewed as a prohibited use of force, because to do so would pro- 
mote the application of more lethal techniques. Approaching the question in a 
predictive mode, however, leads one to conclude that both these extremes are 
examples of wishful thinking, conflating a policy objective with a fair reading of 
the state of the law. 9 

Preliminary Questions 

Before addressing the core question, several preliminary issues merit discus- 
sion, namely the definition of CNA, the techniques that it encompasses, and, fi- 
nally, whether there is any real prospect that the status of CNA under Article 
2(4) will be clarified without creating a new legal regime or clarifying instru- 
ment for that purpose. 

The Definition of "Computer Network Attack" 

A threshold question is what is meant by "computer network attack." CNA 
has been defined in Joint Chiefs of Staff doctrine as "operations to disrupt, deny, 
degrade, or destroy information resident in computers and computer networks, 

75 



Computer Network Attack as a Use of Force under Article 2(4) 



or the computers and networks themselves." 10 For the sake of convenience, this 
definition will be adopted for present purposes. But it should be noted that it 
sweeps too broadly to be truly useful, because it includes a range of physical 
techniques of attack that could be directed at almost any target. 

Unless it be contended that computer facilities have a different status in inter- 
national law than other facilities (a proposition for which there is no authority), 
targeting a kinetic weapon, such as a missile, bomb or other explosive device, at 
a computer (or, more likely, a structure known to house computing facilities) 
should not raise any different question under international law than if the same 
weapon were targeted at another piece of equipment or a structure used for a differ- 
ent purpose. The operation itself almost certainly will be characterized as a use of 
force. * 1 Thus, because it includes techniques of physical attack that are not unique to 
computers but instead are widely applicable without distinction as to target, the 
Joint Chiefs' definition of CNA has limited utility as a tool of legal analysis. 

At the same time, the definition contains an ambiguity that also may limit its 
usefulness, in that it is unclear whether it encompasses the manipulation of a 
computer network to achieve an effect extrinsic to the network itself, as opposed 
to merely rendering the network ineffective. An example of such an extrinsic ef- 
fect would be the hostile manipulation of a computerized railway control system 
as to produce train wrecks. 12 Similar hypothetical examples abound, running 
from the potentially catastrophic 13 to the merely vexatious. 14 While such oper- 
ations could be viewed as a form of "degrading" the information resident in the 
computer, the definitional fit is awkward. Since these manipulative variants of 
CNA are, however, potentially among the most important from a force perspec- 
tive, they will be assumed to be included within the definition for purposes of 
this discussion. 15 

Techniques of CNA 

How CNA is accomplished can have a bearing on the legal analysis. CNA is 
not a monolithic technique. On the contrary, there are many methods by which 
computer networks have been, or could be, attacked. Nor is CNA capable only 
of being directed at a single objective. Instead, a broad array of purposes can be 
served by hostile intrusion into computers or computer networks. These in- 
clude, among others: (i) extracting the information held in the target computer 
(espionage); (ii) disseminating information through the adversary's information 
network in order to deceive the adversary or stimulate political instability; (hi) 
preparing the battlespace by incapacitating the adversary's command, control, 
and communication capabilities; or (iv) causing property damage, physical 

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Daniel B. Silver 



injury, or death by manipulating infrastructure or operational systems controlled 
by the target computer. 

It should be obvious that which technique is being considered, as well as the 
purposes for which it is to be employed, can make a significant difference to the 
legal outcome. As noted above, a traditional physical attack (e.g., bombing the 
building that houses the computers) seems to present no legal issues specific to 
the fact that the target is a computer or computer network. The legally most in- 
teresting applications of CNA are those methods of attack which are highly spe- 
cific to computers because they make use of the methods by which computers 
themselves operate. 

Concern about infrastructure security and the potential vulnerability of the 
United States to malicious intrusion on computers and computer networks has 
generated considerable discussion of the non-kinetic technical means by which 
computers might be attacked. 16 It is not necessary here to rehearse the technical 
details. It is sufficient to note their general outlines. What is unique to computers 
is their vulnerability to what has been called "digital data warfare" 17 namely the 
covert introduction of malicious computer code into a computer system or net- 
work to achieve an objective. 

There is a rich lexicon describing variants of malicious computer code (e.g., 
virus, worm, Iroj an horse, flying Dutchman, time bomb, logic 
bomb" 18 ), but the labels do not matter here. What is significant in the present 
context is that malicious computer code can be designed to lie dormant until 
triggered and to self-destruct and eliminate evidence of its presence after the 
mission has been accomplished. Also significant is that most computer systems 
are linked electronically to other systems and that malicious code usually can be 
introduced into a computer system by electronic data transfer (over the Internet 
or directly) as long as the attacker can evade or overwhelm whatever defenses are 
built into the system. Malicious code also can be introduced into a computer 
system by concealing it in hardware or software that the operator of the target 
system unwittingly incorporates into the system. There also reportedly are 
back-door techniques for introducing malicious code into computer systems 
without any use of media for which the system was designed, for example by 
manipulating the power system or using high-energy radio frequencies or care- 
fully controlled electromagnetic pulses. 19 

The Prospects that the Law will be Clarified 

Although the application of UN Charter Article 2(4) to CNA is an intellectu- 
ally interesting question, there is reason to wonder whether, as a practical matter, 

77 



Computer Network Attack as a Use of Force under Article 2(4) 



the issue ever will arise in a context requiring an actual decision. The most im- 
portant obstacle may be the difficulty of attributing CNA to State action. More- 
over, even if State use of CNA were to emerge as a recognizable phenomenon, 
such CNA would have to occur in relative isolation in order squarely to pose the 
relevant legal issue. Because this seems improbable, it likely will be a long time, if 
ever, before the practice of States, decisions of the International Court ofjustice 
(ICJ), or other recognized sources of international law yield a clarification of 
how Article 2(4) applies to CNA. Thus, the best prospect for a prompt and au- 
thoritative elucidation of the status of CNA under Article 2(4) would be if States 
were to agree to define the legal parameters of CNA through an appropriate in- 
ternational instrument. 

1. State action. Although various authors have posited a number of forms 
that an incident of CNA could take, from disrupting air traffic control systems to 
"busting" dams or oil pipelines, the rub is that, at least up to the time of this writ- 
ing and to the best of the author's knowledge, none of these imaginable instances 
of CNA actually has been perpetrated by a State or with publicly-discernible 
State sponsorship. 20 Indeed, the more extreme (and therefore more interesting) 
examples apparently have not occurred at all. 

It certainly is true that numerous instances of intrusion into computer net- 
works by private individuals (generally called "hacking") have taken place re- 
cently. 21 Some of these have been fairly primitive, such as the flooding of US 
Government Internet websites with messages ("spamming") emanating from 
Serbia and protesting US bombing of that country. 22 Others have been more so- 
phisticated and potentially quite harmful, including attacks on Defense Depart- 
ment and other US Government computer networks. But most appear to have 
been the work of individuals or groups not identified (at least not in any source 
accessible to the public) as sponsored by a State. 

Lacking acknowledged, or at least provable, State action or State sponsorship, 
such events must be considered as raising problems in international criminality, 
not public international law. Moreover, to date there appears to have been no 
State reaction to CNA in the international legal arena. Because no State has yet 
taken any action or asserted a legal position vis-a-vis another State arising out of 
an incident of CNA, there is a lack of the State practice that could illuminate the 
international legal analysis of CNA, whether under Article 2(4) or under cus- 
tomary international law. 

This state of affairs is not surprising. CNA is a new phenomenon. Moreover, 
unlike many other putative techniques of force, most forms of CNA may be dif- 
ficult or impossible to trace to the real perpetrator. Indeed, the most effective 
forms of CNA are likely to be contrived so as to conceal the fact that they 

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Daniel B. Silver 



occurred at all, leaving the target State in doubt as to whether the affected com- 
puter network was externally attacked or simply failed for other reasons. Obvi- 
ously, to the extent that it is not possible plausibly to demonstrate the existence 
of an event of CNA, even less the identity of the perpetrator and a nexus to a 
State sufficient to imply State responsibility, any State response based on an al- 
leged violation of Article 2(4), or indeed any other norm of international law, 
would lack credibility. 

This issue is exacerbated by the amorphous structure of the Internet. If an in- 
cident of CNA is effected by "indirect penetration" 23 over the Internet, it may 
be difficult to determine where it originated. There is no inherent reason why 
the point from which the attack is launched must be in the territory of the State 
that caused the act to be done. Moreover, even if the identity of the immediate 
perpetrator is discovered, it may be impossible to demonstrate a link between 
that person or organization and a State to which responsibility for the CNA can 
be attributed. To date, the mode of CNA in actual practice is the computer 
"hacker," wreaking havoc for sport or, occasionally, for some ideological mo- 
tive. One would expect any State that chose to use CNA as a weapon to attempt 
to make its efforts look like those of a hacker. 

Moreover, the contexts in which a State is most likely to use CNA unaccom- 
panied by an array of traditional military instruments are intelligence collection 
and covert action, for example, the use of CNA to sow unrest in the target State's 
population. Such applications of CNA, however, probably are also the least 
likely to be publicly acknowledged by, or credibly attributable to, the State that 
perpetrates them. 

2. Unlikelihood of Isolated Use. In order for the status of CNA under Ar- 
ticle 2(4) to emerge as an issue, the incident in question probably would have to 
be considered in isolation. If, as may have been the case in the Kosova conflict, 
CNA is used in the context of a military operation conducted by traditional 
means that indubitably constitute force, the target State would have little interest 
in raising a legal dispute on the sole issue of CNA. (Thus, Serbia may have tena- 
ble claims that the entire operation conducted against it was a violation of inter- 
national law, but it is unlikely that it would single out US hacking into its 
computer networks, if it occurred, as a separate violation, even less one worthy 
of an individualized response.) 

The Status of CNA Under Article 2(4) 

Lacking any directly applicable precedents or other sources of international 
law, the status of CNA under Article 2(4) only can be predicted by drawing 

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Computer Network Attack as a Use of Force under Article 2(4) 



analogies to other phenomena whose status is better established. If CNA in all its 
manifestations easily could be assimilated to armed force, further discussion 
would be superfluous, since Article 2(4) indisputably encompasses armed force. 
Neither every form of CNA nor every purpose for which CNA can be used, 
however, readily can be analogized to armed force. Some applications of CNA 
(including, notably, those the United States is reported to have contemplated 
using against Slobodan Milosevic) operate only in the economic or political 
sphere, thus making highly relevant the question whether Article 2(4) encom- 
passes measures of economic or political coercion, or, if not all such measures, at 
least those that threaten the target State's territorial integrity or political inde- 
pendence. Moreover, because it may be unclear (given the inherent problems of 
tracing CNA to its source) whether an incident of CNA has been conducted by 
military forces, another relevant issue, if one is to reason by analogy, is whether 
non-military uses of physical force can fall within the scope of Article 2(4). 

Economic and Political Coercion as Force 

Virtually since the Charter was adopted, controversy has existed as to 
whether measures of economic and political coercion constitute force under Ar- 
ticle 2(4). The weight of scholarly opinion supports the negative view, 24 but that 
does not appear to have put the question to rest, at least as applied to CNA. Thus, 
one recent analysis of CNA under Article 2(4), while admitting that the "pre- 
vailing view" among scholars would confine Article 2(4) to "armed force," as- 
serts that a more balanced, contextual view of Article 2(4) would conclude that 
economic and political sanctions can threaten international peace and a target 
State's territorial integrity and political independence and therefore can fall 
within the ambit of Article 2(4); the author's conclusion that CNA generally falls 
within Article 2(4) derives from this premise. 25 In contrast, another recent anal- 
ysis of the status of CNA under Article 2(4) adopts the opposite conclusion, that 
"the prohibition of the threat or use of force includes armed, but not economic 
or political coercion." 26 The same author goes on to comment, however, that 
the borders of force do not necessarily "precisely coincide with armed force, i.e., 
physical or kinetic force applied by conventional weaponry." 27 

On balance, the latter perspective is better founded. Although a conclusion that 
economic or political coercion standing alone constitutes force under Article 2(4) 
might well contribute more to the purposes of the Charter and to the maintenance 
of world order than the contrary, that does not make it tenable as a matter of legal 
analysis. A number of points sustain the view that Article 2(4) does not apply to 
measures of political or economic coercion. These include the following: 

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Daniel B. Silver 



• The historical background of Article 2(4) shows that it was conceived 
against a background of international efforts to eliminate unilateral 
recourse to armed force. 28 Measures of economic and political coercion 
were not the issue. 

• The travaux preparatories of the Charter indicate that the San Francisco 
Conference declined to adopt a proposal that was advanced to extend the 
prohibition on the use of force to include economic sanctions. Subsequent 
General Assembly declarations, principally the Declaration on Friendly 
Relations 29 and the Declaration on the Enhancement of the Effectiveness 
of the Principle of Refraining from Threat or Use of Force in 
International Relations, 30 provided an opportunity for the General 
Assembly to clarify the issue by delineating economic and political 
coercion as equivalents of armed force for purposes of Article 2(4). Efforts 
were made by some Members to this end, but they met resistance from 
other Members and were unsuccessful, 31 demonstrating that there is no 
common understanding among Members that would support extending 
Article 2(4) to economic or political coercion. 

• There is no decision of the International Court of Justice (ICJ) holding 
that measures of economic or political coercion constitute force under 
Article 2(4). Indeed in the Nicaragua case, 32 in which the Court generally 
considered the customary international law prohibition against the use of 
force to be coterminous with Article 2(4) (which was not itself at issue), 
Nicaragua complained of substantial measures of economic pressure. 
These were considered to be violations of the bilateral treaty of 
Friendship, Commerce and Navigation between Nicaragua and the 
United States, however, and were not even mentioned as possible 
violations of the customary international law prohibition on the use of 
force. Moreover, the Court held that even the United States' furnishing of 
substantial financial support to insurgent forces in Nicaragua, support that 
was used to sustain acts of violence, did not constitute the use of force 
under customary international law. 33 It would seem, if financing an 
armed insurrection is not force, that, a fortiori, other economic measures 
that have a less direct nexus to armed violence would not be either. 

Thus, despite arguments advanced to the contrary, the fact remains that the 
drafting history of the Charter is inconsistent with such an extension, that this 
question generally has divided Western States from significant components of 
the "Third World," and that no international consensus has emerged defining 
economic and political coercion, standing alone, as force, although there is a 

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Computer Network Attack as a Use of Force under Article 2 (4) 



strong basis for concluding that such forms of coercion may violate other norms 
of international law, such as the principle of non-intervention. 34 

An argument can be made that the prevailing view regarding economic and 
political measures of coercion should not apply to CNA. Although ultimately 
not convincing, it proceeds along the following lines. In more than half a cen- 
tury of debate over the application of Article 2(4) to economic and political co- 
ercion, the kind of coercion that has been envisaged has been primarily external 
and gradual — trade sanctions, withholding economic benefits, unequal trading 
practices, interference with the target State's external commercial relations. In 
contrast, the kind of economic coercion that CNA might make possible, crip- 
pling the banking system, or shutting down the securities markets, operates on 
the internal economic structures of the target State and does so through a swift 
and devastating blow. Therefore, since CNA is a different phenomenon, it can 
be argued that the earlier debate over economic and political sanctions as force is 
irrelevant. 

While the factual premise underlying this argument may be valid, all it dem- 
onstrates is the neutral fact that CNA is a new form of hostile activity. That 
CNA may differ from earlier forms of economic and political coercion does 
not tell us whether CNA comes within the intended scope of Article 2(4) or 
instead should be viewed as another manifestation of the types of economic 
and political coercion that various states have failed to persuade the interna- 
tional community to acknowledge as falling within the definition of "force." 

In analyzing the application of Article 2(4) to CNA in order to predict how 
the ICJ and the world community will view CNA, it seems prudent, in light of 
existing legal authority, to acknowledge, however much a different conclusion 
might be desired on policy grounds, that there is little likelihood that purely eco- 
nomic or political coercion, even if effectuated in novel ways, will be considered 
to violate Article 2(4). If this proposition is correct, it suggests that the touch- 
stone in any future analysis of CNA under Article 2(4) will be whether the spe- 
cific application of CNA at issue more closely resembles economic and political 
coercion, on the one hand, or, on the other hand, military force as the latter con- 
cept is commonly understood. 

NonrMilitary Physical Force 

Another interpretive issue under Article 2(4) that bears on the status of CNA 
is whether non-military physical measures can also constitute force for purposes 
of Article 2(4). Examples of such measures would include: a State intentionally 
acts to cause flooding in an adjacent down river State; a State sets a forest fire in a 

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Daniel B. Silver 



frontier region intending that it spread into the target State; a State releases nox- 
ious substances into the environment, knowing that the effect will be felt in the 
target State. Opinion is divided as to the status of such acts under Article 2(4) and 
there is no decisional authority directly on point. Some scholars admit the possi- 
bility that in certain circumstances a hostile use of such non-military forms of 
physical force could fall within Article 2(4), especially if the results rose to a level 
of magnitude that could be viewed as the equivalent of an armed attack trigger- 
ing the right of self-defense under Article 51. 35 

The better view would appear to be that non-military physical force can in- 
deed fall within Article 2(4), even if the consequences do not rise to the level of 
an armed attack. The principal reason why scholars have opposed such an exten- 
sion of Article 2(4) appears to be a "slippery slope" fear that applying Article 2(4) 
to non-military physical force when its effects approximate those of military 
force would open the door to applying Article 2(4) to measures of economic and 
political coercion that have similarly devastating effects. This fear is misplaced. 
In the case of non-military physical force, the fact that the force is physical is 
enough, first, to distinguish it from coercive economic and political measures 
and, second, to support an analogy to those military forms of physical force that 
clearly lie at the core of Article 2(4). 

If one is prepared to admit that non-military physical measures can constitute 
force for purposes of Article 2(4), it is hard to see why this should be the case only 
if the consequences are of a type and degree of seriousness that would rise to the 
level of an armed attack. It is widely recognized that not all force under Article 
2(4) necessarily constitutes an armed attack under Article 51. The ICJ implicitly 
so stated when it indicated in the Nicaragua case that supplying arms and other 
support to armed rebel bands in another State is not an armed attack but could 
constitute a violation of the customary international prohibition on the use of 
force. 36 To require non-military force to rise to the level of an armed attack in 
order to violate Article 2(4) would obliterate the important distinction between 
Articles 2(4) and 51. Such a position would either legalize under Article 2(4) a 
broad range of hostile and destructive physical acts that fail to reach the armed 
attack threshold or would provide an incentive to lower the Article 51 thresh- 
old, with a concurrent risk of expanding violence under the pretext of legitimate 
self-defense. Thus, on balance, it seems better to conclude (although admit- 
tedly without the benefit of any supporting authority) that intentional, hostile 
uses of non-military physical force by one State against another can fall within 
the scope of Article 2(4) when they sufficiently resemble military force in their 
physically destructive effect, whether or not the criteria of an armed attack 
are met. 



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Computer Network Attack as a Use of Force under Article 2(4) 



Flexibility of the Concept of Military Force 

Even if one were to accept the restrictive view that force under Article 2(4) 
means military force, it should be noted that the latter concept carries a large 
measure of flexibility. As the techniques of warfare evolve, so too does the gen- 
eral understanding of what constitutes "military" force. If this were not so, the 
prohibition of Article 2(4) would become ossified at the level of military tech- 
nology that existed at the end of World War II and would become increasingly 
irrelevant to the modern world. Thus, we have no difficulty in recognizing that 
new forms of biological and chemical warfare, directed energy, lasers, and other 
innovative technologies, if used intentionally by a State to cause physical injury 
or property damage in another State, will constitute forms of military or armed 
force. This applies even when the instrument itself, like a laser beam, is not in- 
herently harmful but also is used for a range of beneficent purposes. 

The hard question is how one recognizes when a new technology has be- 
come a form of military or armed force. The answer is not always obvious, but 
one significant criterion is whether the technique is associated with the armed 
forces of the State that uses it. Thus, in the case of CNA, if this technique were to 
be deployed only by intelligence agencies in conducting covert actions, it seems 
less likely that it would be generally accepted as a form of military or armed force 
than if it were used by the armed forces. Consequently, it is likely that the fact 
that the US Department of Defense (apparently joined by the military forces of 
other countries) is making preparations for the military use of CNA will hasten 
the day when a State's offensive use of CNA, at least for purposes of causing 
physical injury or property damage, will be considered a use of force under Arti- 
cle 2(4). 

Preliminary Conclusions 

Against the background of the foregoing discussion, what preliminary con- 
clusions can be reached about the application of Article 2(4) to CNA? The basic 
conclusion appears to be that force is like pornography: the law will recognize 
certain forms of CNA as force when it sees them. The present state of legal de- 
velopment does not permit laying down any hard and fast rules as to when that 
will be. It does, however, permit one to make some predictions about the cir- 
cumstances in which State use of CNA may be likely to be held to constitute 
force under Article 2(4). 

• CNA is not a single form of activity, nor is it potentially capable only of 
being directed at a single purpose. Thus there is no basis for concluding 

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Daniel B. Silver 



that all forms of CNA per se constitute a violation of Article 2(4). 
Consequently, whether and when CNA will fall within the force category 
must be determined on a case-by-case basis. The question is how. 

• CNA is most like traditional military force, and thus most likely to 
constitute force under Article 2(4), if its direct and foreseeable effects are 
physical injury or property damage. 

• CNA that directly and foreseeably produces physical injury or property 
damage similar to that resulting from the use of traditional forms of 
weaponry is likely to be viewed as a use of force under Article 2(4), 
especially if that CNA is carried out by a State's armed forces. 

• CNA that produces effects (even if direct and foreseeable) that are only of 
an economic or political nature is not likely to be held to be within the 
scope of Article 2(4). (Thus a program of CNA that crippled the financial 
infrastructure of a target State would not be a use of force under Article 
2(4). Even if angry investors rioted and tore down the stock exchange, 
that physical damage would not be direct and foreseeable.) 

The notion that CNA will be recognized as force under Article 2(4) when it 
sufficiently resembles military force implies that views on particular forms of 
CNA are likely to evolve in light of developments in military operations. These 
may lead to surprising conclusions. For example, before NATO's campaign 
against Serbia, one might have predicted that using CNA to produce transitory 
power outages in a target State would not be recognizable as an analog or equiv- 
alent of military force, because it causes no permanent damage to the targeted 
power system, and the effects on users of power, including the military, are un- 
certain, indirect and incalculable. Transitory outages seem more of an economic 
measure or a psychological weapon (intended, if one may put it this way, to in- 
duce a sense of powerlessness in the target State's population and leadership) 
than a military one. 

In the last year, however, it was reported that the United States, on behalf of 
NATO, employed an innovative form of weapon against Serbia, a type of carbon 
filaments used against electric power facilities. 37 The filaments were dropped from 
aircraft, like a bomb, with the intention of causing property damage. Thus, it 
seems incontrovertible that their use was a form of armed force, even though the 
attacks did little or no permanent damage, merely shorting out the power system 
and disabling it for a brief period, thereby producing some disruption to the econ- 
omy and the military effort, but having principally a psychological effect. 

The same kinds of effects on the power system could be produced by CNA. 
Should this ever occur, it is likely that the earlier military use of the analogous 



85 



Computer Network Attack as a Use of Force under Article 2(4) 



weapon described above will color the way the world looks at such use of CNA to 
shut down a target State's power system through manipulating its computerized 
controls. The existence of a military, non-CNA precedent, it is submitted, will cre- 
ate a predisposition to try to fit such an incident of CNA into the force category. 

The Views of Other Commentators 

A small number of commentators have addressed the status of CNA under 
Article 2(4) and have come to widely divergent conclusions. A few assert that 
CNA causing destructive effects is ipso facto a use of "force." Others espouse the 
view advanced in this chapter, that CNA will only constitute force under Article 
2(4) if it sufficiently resembles what the world recognizes as armed or military 
force and focus on attempting to provide a more precise way of identifying the 
principles that underlie such recognition. 

1. Destructive effect as the touchstone. In one of the most extensive ex- 
aminations of this issue to date, Sharp has proposed a rule that appears both 
sweeping and simple: "Any computer network attack that intentionally causes 
any destructive effect within the sovereign territory of another state is an unlaw- 
ful use of force within the meaning of Article 2(4) that may produce the effects of 
an armed attack prompting the right of self-defense." 38 

It should be noted that this rule is not without its own interpretive issues. 
Does the term "destructive" mean only physical destruction, for example, or 
does it include economic harm? Sharp suggests that it could include the latter in 
some circumstances. He concludes that Article 2(4), while not including all co- 
ercive economic and political sanctions that are intended to influence another 
State's policy or actions, does extend to coercive political and economic sanc- 
tions that threaten the territorial integrity or independence of another State. 39 
Thus, a non-physical destructive effect (such as disruption of financial markets) 
should be considered force under Article 2(4) if it is sufficiently serious to 
threaten the target State's territorial integrity or independence. 

Aside from the fact that this conclusion is inconsistent with the weight of legal 
authority, extending the concept of "destruction" to include coercive economic 
and political measures, but only if they threaten another State's territorial integ- 
rity or independence, seems likely to deprive the posited rule of much of its ap- 
parent objectivity and simplicity, because it is not easy to determine when 
economic and political measures are likely to have such an effect unless the judg- 
ment is being made after the effect already has been produced. 

For example, the Arab boycott of Israel manifestly was intended to threaten 
that country's territorial integrity and independence; it was carried out by States 

86 



Daniel B. Silver 



that had declared war on Israel and espoused as their war aim the total elimina- 
tion of the target country. Did that set of economic measures, or the associated 
political measures intended to delegitimize Israel in the international arena, re- 
ally "threaten" Israel's territorial integrity and independence? With the benefit 
of hindsight, the answer clearly seems negative, but at different points in time the 
outcome was not so clear. Would we therefore conclude that the Arab boycott 
was a violation of Article 2(4) at certain periods in Israel's history and not at oth- 
ers? Such a result seems an unworkable rule of law. The example illustrates the 
difficulty, except perhaps in the most extreme cases, of applying a rule that de- 
pends on determining when a threat exists to territorial integrity or political 
independence. 

In advancing the "destructive effect" standard, Sharp reasons on the basis 
of the proposition that other forms of non-military physical force constitute 
force under Article 2(4), 40 citing as examples the release of floodwaters or the 
spreading of fire across a border. 41 The argument then proceeds to adumbrate 
types of significant property damage, as well as possible human fatalities, that 
could be effected through CNA, such as flooding, train wrecks, plane crashes, 
chemical explosions, and fires. If these physically destructive events would con- 
stitute force under Article 2(4) if produced by a State agency using non-military 
means, it is argued, why should they not also be considered force when pro- 
duced by CNA? 

Although the underlying premise does not seem to be supported by judicial 
decision or State practice, the conclusion nonetheless is reasonable and should 
be widely accepted if confined to the examples given above. The analysis be- 
comes markedly less compelling, however, when this already untested proposi- 
tion is used as a springboard to make a leap into the arena of the financial, 
political, or psychological. The analogy to flood or fire is not convincing as a basis 
for concluding that causing "a run on banks or a massive financial crisis by crash- 
ing national stock exchanges" 42 also would constitute force. It pushes the under- 
lying principle too far. (It should be noted that this assessment is not intended as a 
value judgment. Such State intervention in the affairs of another ought to be 
prohibited by international law and, indeed, may well may be on other grounds, 
such as the principle of non-intervention. The sole question, here, is whether 
Article 2(4) provides the norm.) 

There might well be narrow circumstances in which Article 2(4) could be 
held applicable to an attack having effects solely or primarily in the economic or 
political sphere, but, if so, it is submitted, this would be because of the means em- 
ployed, not the nature of the target. For example, if a State were to use physical 
but non-military means to achieve these results (e.g., dispatching intelligence 



87 



Computer Network Attack as a Use of Force under Article 2(4) 



operatives into the target State to cut a fiber-optic cable on which essential fi- 
nancial information is transmitted), scholars might well conclude that an inci- 
dent of force had occurred. Suppose instead, however, that a State sought to 
achieve the same end, financial disruption in the target State, through purely 
non-physical means, such as large-scale falsification of trading orders or dissemi- 
nation of false market information. These seem to be quintessential measures of 
economic coercion, and it is very unlikely that scholarly opinion would sustain 
the view that such acts constituted force under Article 2(4). Thus, identity of 
ultimate effects, standing alone, simply does not supply a sufficient basis for con- 
cluding that Article 2(4) applies. The reason why the act of sabotage might be 
held to constitute force is not the end result (that the stock exchange crashes), 
but cutting the cable would involve an intrusion on the target State's territory 
that, although arguably "non-military," would achieve a physical effect closely 
resembling the use of kinetic action. 

2. Characteristics of armed force as the touchstone. In a recent analysis, 
Schmitt, recognizing that within the existing framework of international law, 
CNA will be deemed to be Article 2(4) force only when it sufficiently resembles 
armed force, embarks on an impressive effort to delineate a principled basis for 
identifying those cases of CNA that meet this test. 

He notes that traditional notions of force are instrument-based: the Article 
2(4) prohibition against using a particular instrument, namely military force, 
against another State is tied to the high degree of congruence between its use and 
reprobated consequences, primarily physical destruction and injury. This, it is 
posited, explains why armed force, which almost always results in physical de- 
struction or injury, is prohibited force, while economic or political coercion, 
whose tie to predictable physical destruction or injury is tenuous, is not. 43 

This observation is not entirely satisfying, however, because, as Schmitt has 
recognized, "the instruments do not precisely track the threats to shared values 
which, ideally, the international community would seek to deter." 44 It is clear 
that many technologies that would be recognized as weapons when used for the 
purpose of causing physical damage or personal injury, e.g., laser beams, can be 
entirely beneficent in other uses, such as medicine. Thus, when we assign one of 
those technologies to the "armed force" category, it is not because of its inherent 
lethality but because of the potential destructiveness of the way it is being used or 
the purpose for which it is deployed. The same could be said of CNA. And, for 
this reason, it seems unlikely that many would debate that CNA used directly to 
cause physical destruction or injury (busting a dam, rupturing a pipeline, causing 
airplanes or trains to crash) is tantamount to a weapon for purposes of Article 
2(4), making its use force. The question is whether, applying criteria that will be 

88 



Daniel B. Silver 



recognized as consistent with the current understanding of Article 2(4), any 
other use of CNA is sufficiently similar to these easy cases to be placed confi- 
dently in the force category. 

To answer this question, Schmitt has suggested that, unless the interna- 
tional community is prepared to adopt a new normative structure to apply to 
inter-State coercion, the analysis of CNA must be fit into the traditional 
instrument/consequence based frame of reference by looking to see whether 
particular uses of CNA meet the criteria that distinguish armed force from poli- 
tical or economic coercion. 45 These criteria, he suggests, are: severity — the 
higher threat of physical injury or property damage associated with armed force; 
immediacy — the comparative swiftness of harm arising from armed force, as com- 
pared with other forms of coercion; directness — the relatively direct connection 
between armed force and negative consequences, as compared with other forms 
of coercion; invasiveness — the fact that in the case of armed force the act causing 
harm generally crosses into the territory of the target State whereas measures of 
economic or political coercion normally do not; measurability — the greater 
ease and certainty of assessing the consequences of armed force as compared with 
other forms of coercion; and presumptive legitimacy — the fact that violence is 
presumptively illegal under domestic and international law, whereas most (or 
at least many) techniques of economic and political coercion are presump- 
tively legal. 46 

It would be desirable to be able to delineate criteria for identifying those types 
of CNA that should be treated as analogous to armed force. Yet, it is not clear 
that Schmitt's proposed six criteria reliably serve this purpose. Rather, examina- 
tion of the criteria suggests that virtually any event of CNA can be argued to fall 
on the armed force side of the line, except perhaps as regards the criterion of se- 
verity, and that the criterion of severity in effect is just another way of articulat- 
ing the observation that, for an event of CNA to be considered a type of force 
under Article 2(4), it must produce (or at least threaten to produce) personal in- 
jury or property damage similar to that caused by military weapons. Review of 
the proposed criteria, it is submitted, substantiates this proposition. 

Immediacy: CNA ordinarily occurs with great immediacy, once its destructive 
potential is triggered. While malicious software may be designed to lie dormant 
for an extended period until some triggering event occurs, once it becomes ac- 
tive, the disruption of the targeted computer or computer network can be ex- 
pected to be immediate, as well as immediately perceptible in result, even if the 
owner of the computer does not recognize that CNA is the cause of its degrada- 
tion or destruction. (It is hard to imagine circumstances in which a slow, imper- 
ceptible deterioration of the targeted computer would be advantageous to the 

89 



Computer Network Attack as a Use of Force under Article 2(4) 



author of the attack.) Thus, there seems to be little difference between CNA and 
ordinary armed force. 

Directness: Compared to economic or political coercion, many applications of 
CNA are as direct as traditional armed force. The consequences generally flow 
directly from the act of attack itself and do not depend on intervening or con- 
tributory factors in order to have a harmful effect. Directness might become an 
issue if the only harmful effect were property damage and any effect on human 
beings was reactive. Thus, there could be a significant difference between CNA 
that caused a dam's floodgates to open and kill people, and CNA that merely in- 
convenienced the target population (e.g., by disrupting financial markets) to 
such a degree that rioting ensued. On the other hand, the path even from the lat- 
ter form of CNA to the reprobated result of physical injury and tangible property 
damage is no more (or less) indirect than similar consequences, such as starvation 
or health disasters, arising from a military blockade. Yet a military blockade is 
undeniably a use of force. To the extent that the directness criterion is useful, it 
really seems to do no more than restate the proposition that to constitute force an 
event of CNA must directly cause physical injury or property damage and not 
operate solely in the economic or political realm. 

Invasiveness: At least at the level of electrons, the act causing the harm in a 
CNA attack usually crosses into the target State, whether it be by importation of 
a corrupted item of hardware or software, the actions of an agent of the hostile 
State (a cyber saboteur), or cross-border data transmission over the telephone 
network. There appears to be no difference, in this regard, between CNA and 
traditional armed force. 

Measurability: There seems no reason to assume that the consequences of an 
event of CNA would be any harder to measure than the negative consequences 
of armed coercion. 

Presumptive legitimacy: Many States already have enacted laws outlawing CNA 
when perpetrated by private parties within the territory. As more and more 
States become aware of the threat, it is likely that this technique, at least when 
used by non-State actors, will be viewed in most States as presumptively ille- 
gal, 47 thus eliminating any distinction between CNA and what traditionally has 
been regarded as armed force. 

Factoring out those of the criteria that do not appear reliably to distinguish 
CNA from armed coercion, all that is left is severity. Moreover, severity, as de- 
fined for this purpose, seems applicable only to physical injury and property 
damage, compelling the conclusion that CNA will be considered within the 
force category only if its foreseeable consequence is to cause physical injury or 
property damage and, even then, only if the severity of those foreseeable 

90 



Daniel B. Silver 



consequences resembles the consequences that are associated with armed coer- 
cion. In short, what seems at first blush to be a nuanced way of analyzing inci- 
dents of CNA in practice may in fact turn out to do no more than identify the 
cases that would be clear without applying a criterion any more formal than was 
suggested in the preliminary conclusions above: CNA will be considered as 
force when it causes physical injury or property damage that is recognizably sim- 
ilar to that produced by instruments generally identified as weapons. 

The limitations of the proposed factors are demonstrated by Schmitt's own 
comparison of two hypothetical uses of CNA. 48 In the first, CNA is used to dis- 
able an air traffic control system, causing airplanes to crash. According to 
Schmitt, this meets the criteria and is force. In the second example, the attacker 
destroys a university computer network for purposes of disrupting military re- 
search being conducted on campus. This does not meet the test and is not force. 
Schmitt suggests that there should be a different result in the attack on the uni- 
versity because the desired outcome, diminished capacity on the battlefield, is 
too remote from the event of CNA and too dependent on indeterminate factors. 
But this is not persuasive; the question of remoteness depends on how the out- 
come is defined. The immediate objective of the hypothetical CNA is to de- 
grade the functioning of the targeted computer network, and the nexus between 
the act and that outcome is immediate. (One could as well argue that dropping 
filaments on Serbian electric power facilities to produce temporary power out- 
ages is remote from the ultimate objective, impairing Serbia's ability to maintain 
military operations. Yet few would gainsay that the NATO bombing raids in 
which these devices were dropped constituted force under Article 2(4).) Thus, 
except for this purported difference in directness, Schmitt's two examples are re- 
markably similar with respect to the proposed factors. In reality, it is submitted, 
the only tenable reason, and the real underlying explanation, for the difference 
in the posited outcome is that in the first case there is physical injury and signifi- 
cant property damage and in the second there is not. 

That severity does not reliably predict the legal outcome unless it is confined 
to the severity of physical injury and/ or property damage is shown by consider- 
ing another hypothetical use of CNA, disruption of the target State's financial 
system through interference with the computers through which securities are 
traded, money moves, and financial transactions are recorded and settled. If suc- 
cessfully used against the United States or many other Western countries, the re- 
sulting social and economic disruption and monetary losses would be staggering. 
For each of Schmitt's factors, this event of CNA seems comparable to disabling 
an air traffic control system, except for the fact that it does not directly and 
foreseeably result in physical injury or property damage. In terms of severity, 



91 



Computer Network Attack as a Use of Force under Article 2(4) 



more broadly construed, can there be any doubt that the impact of such an attack 
would be orders of magnitude more serious than if a hostile State, through a mis- 
sile attack that caused no loss of life, obliterated a military warehouse full of uni- 
forms — an incident that no one would hesitate to describe as within the scope of 
Article 2(4)? Yet, applying the existing legal framework for analyzing Article 2(4), 
this hypothetical attack on the country's financial infrastructure probably would 
be considered to fall outside the Article 2(4) force category, because it much more 
closely resembles economic coercion than traditional armed force. 

Conclusion: The Unsatisfactory Reality 

There is no legal authority directly applicable to the status of CNA under Ar- 
ticle 2(4). The most significant interpretive issue under Article 2(4) that might 
support extending it to a broad range of types of CNA is whether force includes 
economic or political coercion, and the weight of prevailing opinion is that it 
does not. Against this background, two approaches recently have been suggested 
in the literature. The first, destructiveness as the criterion, is relatively simple to 
apply (or could be made so with a few clarifications) and might be an appealing 
rule in a legislative context. The problem is that it is not founded in sufficient le- 
gal authority to engender confidence as a correct predictive statement of inter- 
national law under Article 2(4). The second recognizes the limitations imposed 
by prevailing interpretations of Article 2(4) and tries to remain faithful to them, 
while positing criteria by which one can recognize those uses of CNA that fall in 
the force category. The exercise turns out to be somewhat illusory, however. At 
bottom, it leads to a conclusion that probably can be reached by reference to 
only one criterion: whether the foreseeable consequence of a particular manifes- 
tation of CNA is physical injury or property damage comparable to that resulting 
from military weapons. If so, the CNA will be held to fall within the force cate- 
gory. Otherwise it will not. 49 

What we are left with, it is submitted, is a situation in which general agree- 
ment probably can be reached on the proposition that there are some kinds of 
CNA that so resemble armed force that, like other manifestations of 
non-military physical force that have been suggested as falling within Article 
2(4) (e.g., diverting a river in the hostile State so as to cause flooding in the target 
State), they will be held to fall within the scope of Article 2(4). It is likely that 
these forms of CNA will be recognized widely as Article 2(4) force if and when 
they occur, but it is difficult to articulate the precise bases on which recognition 
will rest. The one basis that seems most reliable is that physical injury or property 
damage must arise as a direct and foreseeable consequence of the CNA and must 

92 



Daniel B. Silver 



resemble the injury or damage associated with what, at the time, are generally 
recognized as military weapons. 

This conclusion appears highly unsatisfactory, leaving the law in a state of un- 
certainty, but does it really matter that much? First, it is clear that, whether or 
not they violate Article 2(4), most significant uses of CNA probably will violate 
other rules of international law, such as the prohibition against intervention in 
the affairs of other States, which the ICJ has held to be a principle of customary 
international law. 50 Various specific techniques used in carrying out CNA are 
likely to violate other international treaties, such as those relating to telecom- 
munications. Thus, responsible decision-makers concerned about determin- 
ing the legality of proposed uses of CNA are not bereft of legal principles to 
guide them. 

Second, at least from the target State's perspective, the key issue is whether an 
incident of CNA gives rise to a right to take counteraction in self-defense. For 
that right to arise under the Charter, there must be an armed attack within the 
meaning of Article 51, a standard that goes beyond the existence of force under 
Article 2(4). It is difficult to say whether an event of CNA that caused significant 
physical injury and/or property damage, standing alone, ever could be consid- 
ered an armed attack. In all likelihood, however, a State's use of CNA of such 
magnitude would not occur in isolation; instead it probably would form part of a 
coordinated offensive, other elements of which undeniably would constitute 
armed attack. In such a context, the legal status of the CNA element in isolation 
probably would be of little importance. 

Third, worrying about the status of CNA under Article 2(4) may be fiddling 
while Rome burns. The notion that the Charter represents the sole legal struc- 
ture under which coercive force can be exerted by one State against another 
largely has been discredited — both by the failure of the Security Council mecha- 
nism to function as envisioned by the Charter's framers and by the practice of 
States in ignoring recourse to the Security Council in favor of unilateral (includ- 
ing alliance-based) interventionism. The recent NATO humanitarian interven- 
tion in Serbia, which was given the fig leaf of a Security Council resolution only 
after its military aims were achieved, may be a step on the road to a better and 
more moral system of international law, but it was only the most recent in a series 
of events that, over the decades, have dealt a heavy blow to the system suppos- 
edly established by the Charter. 51 These events sustain the view that, while Arti- 
cle 2(4) represents an aspiration, (perhaps, like another form of prohibition, a 
failed "noble experiment"), the reality of international law on the use of force 
lies in the^ development of a "nuanced code for appraising the lawfulness of indi- 
vidual unilateral uses of force" 52 that is different from Article 2(4). If so, it can be 



93 



Computer Network Attack as a Use of Force under Article 2 (4) 



expected that over time a set of understandings as to the lawfulness of CNA will 
evolve outside the Charter framework. 

This patient approach will not satisfy many, especially those who view CNA as a 
dangerous phenomenon. Enormous benefits to humankind, both actual and poten- 
tial, derive from the use of computers. Advanced societies are moving towards 
pervasive dependence on the interplay of computer networks and advanced 
communications technologies. While not all consequences necessarily are wel- 
come (loss of privacy, for example, is a significant concern), technologically 
sophisticated countries like the United States are experiencing enormous bene- 
fits in terms of increased productivity and enhancement of many aspects of the 
quality of life. These are benefits to which the rest of the world appears to aspire. 

Yet technological sophistication engenders a degree of vulnerability that 
would have been unimaginable in earlier generations. (Who would have imag- 
ined a few decades ago that significant numbers of people would fear the end of a 
millennium not for religious reasons but because of a computer programming is- 
sue?) Human well-being throughout the world increasingly will depend on the 
inviolability of computer networks and the communications links that connect 
them. The world, it can be argued, should not have to rely for protection on un- 
clear and debatable interpretations of the Charter or on principles of customary 
international law, such as non-intervention, that are honored in the breach and 
carry no ready enforcement mechanism. Nor should civilian populations be ex- 
posed to the risk that a code of rules on the use of CNA will evolve only after 
devastating examples of its use have pointed the way. 

Thus, it is suggested (and this is an explicit expression of a policy preference, 
not a statement about the law as it is), efforts should be made towards the adop- 
tion of an international convention that would bind the parties not to use CNA 
for any military or hostile use. This should be accompanied by enhanced efforts, 
whether in the context of the same convention or separately, to achieve global 
legal cooperation in fighting CNA perpetrated by non-State actors, by making 
such action criminal under domestic laws regardless of purported justification, 
and by allowing prosecution of the perpetrators wherever apprehended or their 
extradition to the country in which the target computer or computer network 
was located. 



Notes 

1. Hackers Hit More Federal Web Sites, WASHINGTON POST, June 5, 1999, at A5. 

2. See, e.g., Bruce D. Berkowitz, Operation Backfire: Covert Action Against Milosevic is Neither 
Secret nor Smart, WASHINGTON POST, July 18, 1999, atBl; Philip Sherwell, Sasa Nikolic & Julius 

94 



Daniel B. Silver 



Strauss, Kosovo: After the War: Clinton Orders "Cyber- sabotage" to Oust Serb Leader, SUNDAY 
TELEGRAPH, July, 4, 1999, at 27; Gregory L. Vistica, Cyberwarand Sabotage, NEWSWEEK, May 31, 
1999, at 38. 

3. John Markoff, Cyberwarfare Breaks the Rules of Military Engagement, NEW YORK TIMES, 
October 17, 1999, News In Review, at 5. 

4. Bradley Graham, Military Grappling with Guidelines for Cyberwar, WASHINGTON POST, 
November 8, 1999, at Al. 

5. See Office of General Counsel, Department of Defense, An Assessment of International 
Legal Issues in Information Operations, (Nov. 1999) [hereinafter DoD/GC Paper]. The paper is 
appended to this volume as the Appendix. 

6. Article 2(4) is one of the basic principles in accordance with which members of the United 
Nations are obligated to act. It provides that "[a]ll Members shall refrain in their international 
relations from the threat or use of force against the territorial integrity or political independence of 
any state, or in any other manner inconsistent with the Purposes of the United Nations." UN 
Charter, art. 2, para. 4. 

7. It generally is accepted that "force" under Article 2(4) is not necessarily always an "armed 
attack" under Article 51. The present discussion leaves to others the attempt to define the 
circumstances in which the use of CNA would rise to the level of an armed attack or would be a 
legitimate measure of self-defense under Article 5 1 . UN Charter, art. 5 1 . 

8. W. Michael Reisman, Allocating Competences to Use Coercion in the Post-Cold War World: 
Practices, Conditions and Prospects, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 
26, at 28 (Lori Damrosch Fisler & David J. Scheffer eds., 1991). 

9. That the law is unclear and possibly lacking should be no surprise. There can be little 
argument that Article 2(4) is not well adapted to rapidly evolving technologies. Nor would many 
be heard to contend that the Charter framework, including Article 2(4), is a perfect and effective 
instrument for controlling undesirable hostile activities directed by one State against another (not 
to speak of failing adequately to address the growing threat of hostile activities by non-State actors). 

10. Chairman of the Joint Chiefs of Staff, Joint Publication 3-13, Joint Doctrine for 
Information Operations (1998). 

1 1 . Whether that use of force violates international law will depend on the circumstances, 
including, inter alia, the nature of the target (military or civilian), whether the event occurred in war 
or in peacetime and, in the latter case, whether the operation fell within an exception to the Article 
2(4) prohibition (e.g., an exercise of the right of self-defense under Article 51). 

12. See President's Commission on Critical Infrastructure Protection, Critical Foundations: 
Protecting America's Infrastructures, at A-48 (1997), cited in Michael N. Schmitt, Computer 
Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework, 37 
COLUMBIA JOURNAL OF TRANSNATIONAL LAW 885 (1999). 

13. For example, the manipulation of a hospital's computer-controlled life-support systems to 
cause them to malfunction. See Lawrence G. Downs, Jr., Digital Data Warfare: Using Malicious 
Computer Code as a Weapon, in ESSAYS ON NATIONAL STRATEGY XIII 43, 54 (Mary A. 
Sommerville ed., 1996). 

14. Downs reports that unidentified persons are studying "psycho-electronics" by which a 
virus introduced into a computer system causes the video screen to flicker, inducing headaches in 
users of the video display, such as radar operators. Id. 

15. The range of potential CNA activities perhaps could be more accurately captured, without 
destroying the alliterative symmetry of the Joint Chiefs' current definition, by amending it to 
include "operations to disrupt, deny, degrade, destroy or deleteriously deploy information resident 
in computers and computer networks, or the computers and networks themselves." 

16. See, e.g., Downs, supra note 13. 

17. Id. at 44. 



95 



Computer Network Attack as a Use of Force under Article 2(4) 



18. Id. at 45. 

19. Id. at 49-50. 

20. As noted above, press reports suggest that some form of CNA may have been approved for 
use by NATO forces in operations against Serbia. See, e.g., William Drozdiak, Allies Target 
( Computer, Phone Links, WASHINGTON POST, May 27, 1999, at Al . It appears, however, that what 
really was involved was the targeting of the public telecommunications system. While degradation 
of the public switched network almost certainly will cause substantial collateral effects on computer 
networks, it is questionable whether general attacks on telecommunications or electric power 
infrastructures, both of which can massively affect computer networks, usefully can be considered a 
form of CNA. In the case of Serbia, in any event, the question is of little interest in the present 
context, since NATO's bombing attacks indubitably constituted a use of force. In any event, the 
United States now appears intent on disavowing any such uses of CNA in the Kosova conflict. See 
supra note 4. 

21. See, e.g., General Accounting Office, Information Security: Computer Attacks at Department 
of Defense Pose Increasing Pasks, AIMD-96-84 (May 22, 1996). 

22. Ellen Joan Pollack & Andrea Peterson, Serbs Take Offensive In The First Cyherwar, Bombing 
America, WALL STREET JOURNAL, April 8, 1999, at Al. 

23. Downs, supra note 13, at 49. 

24. See, e.g., YORAM DlNSTEIN, WAR, AGGRESSION AND SELF-DEFENSE 18 (2d ed. 1994); 
Albrecht Randelzhofer, Article 2(4), in THE CHARTER OF THE UNITED NATIONS: A 
COMMENTARY 112 (Bruno Simma ed., 1994). 

25. Walter Gary Sharp, Sr., Cyberspace and the Use of Force 88-91 (1999). 

26. Schmitt, supra note 12, at 908. 

27. Id. 

28. See generally, Edward Gordon, Article 2(4) in Historical Context, 10 YALE JOURNAL OF 
International Law (1985). 

29. Declaration on Principles of International Law Concerning Friendly Relations and 
Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 
2625 (XXV), UN GAOR, 25 th Sess., Supp. No. 28, UN Doc. A/8082 (1970). 

30. G.A. Res. 42/22, UN GAOR, 42 d Sess., 73 d plen. mtg., Agenda Item 131, annex (1988). 

31. See Schmitt, supra note 12, at 905—908, for a discussion of this history. 

32. Military and Paramilitary Activities (Nicaragua v. United States) 1986 I.C.J. 4 (June 27). 

33. Id. at 119. 

34. See generally , e.g., Schmitt, supra note 12, at 904—908. 

35. Randelzhofer, supra note 24, at 113. 

36. Military and Paramilitary Activities, supra note 32, at 108, 109-110, 126-127. 

37. NATO Warplanes Jolt Yugoslav Power Grid, WASHINGTON POST, May 25, 1999, at Al. 

38. SHARP, supra note 25, at 140. Essentially the same conclusion is reached by a law student 
author of a case note on information warfare. See Todd A. Morth, Considering Our Position: Viewing 
Information Warfare as a Use of Force Prohibited by Article 2(4) of the U.N. Charter, 30 CASE WESTERN 
Reserve Journal of International Law 567 (1998). 

39. SHARP, supra note 25, at 90—91. The author suggests that CNA having purely economic 
consequences could even rise to the level of an armed attack, citing the example of a "complete and 
long-term crash of the New York Stock Exchange." Id. at 117. This conclusion appears highly 
debatable. 

40. Id. at 101, citing IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY 

States at 113 (1963). 

41. SHARP, supra note 25. 

42. Id. at 102. 

43. Schmitt, supra note 12, at 911. 



96 



Daniel B. Silver 



44. Id. at 914. 

45. Id. 

46. Id. at 915. 

47. One could question the utility of this criterion, since it may well apply as much to economic 
or political coercion as it does to other forms of CNA and to traditional armed force. While some 
instruments for exercising such coercion are presumptively legal under both domestic and 
international law (such as cutting off financial aid to the target State or imposing trade sanctions), 
others (such as creating economic pressure by massive fraud or theft or destabilizing the target 
State's political process by corrupt payments to government officials) are presumptively illegal 
under domestic law and may well violate norms of international law other than Article 2(4), such as 
the principle of non-intervention. 

48. Schmitt, supra note 12, at 916-917. 

49. Schmitt seems to imply, at least in theory, that there might be a form of CNA that does not 
cause physical injury or property damage but which causes consequences which approximate the 
nature of those involving armed force and thus comes within the scope of Article 2(4), but no 
example is given. 

50. Military and Paramilitary Activities, supra note 32, at 106. 

51. To this effect, see, for example, Michael Glennon, The New Interventionism, FOREIGN 
AFFAIRS, May /June 1999, at 2. 

52. W. Michael Reisman, Criteria for the Lawful Use of Force in International Law, 10 YALE 

Journal of International Law 297, at 280 (Spring 1985). 



97 



VII 



Computer Network Attacks 
and Self'Defense 



Yoram Dinstein 



T 



Armed Attack and Self-Defense 

he general prohibition of the use of force in the relations between States 
constitutes the cornerstone of modern international law. 1 It is currently 
embedded both in the Charter of the United Nations [Article 2(4) 2 ] and in cus- 
tomary international law (which has consolidated under the impact of the Char- 
ter). 3 Indeed, the International Law Commission has identified the prohibition 
of the use of inter-State force as "a conspicuous example" of jus cogens 4 (i.e., a 
peremptory norm of general international law from which no derogation is 
permitted 5 ). The Commission's position was cited by the International 
Court of Justice in the Nicaragua case of 1986, 6 and in two Separate Opinions 
the peremptory nature of the proscription of the use of inter-State force was 
explicitly emphasized. 7 

The correct interpretation of Article 2(4) of the Charter subsequent to the 
Nicaragua Judgment is that there exists in international law today "an absolute 
prohibition of the use or threat of force, subject only to the exceptions stated 
in the Charter itself." 8 The only two exceptions spelled out in the Charter are 
collective security pursuant to a Security Council decision (by virtue espe- 
cially of Article 42 9 ) and individual or collective self-defense (consistent with 



Computer Network Attacks and Self-Defense 



Article 51 10 ). This chapter will focus on self-defense, namely, forcible counter- 
measures put in motion by States acting on their own (individually or collec- 
tively), in the absence of a binding Security Council decision obligating or au- 
thorizing them to behave in such a fashion. 

In accordance with Article 51 of the Charter, the right of self-defense can 
only be invoked in response to an "armed attack." The choice of words in Arti- 
cle 51 is deliberately restrictive. The phrase "armed attack" is not equivalent to 
"aggression" (a much broader and looser term, used, e.g., in Article 39 pertain- 
ing to the powers of the Security Council 1 ] ) . An armed attack is actually a partic- 
ular type of aggression. This is borne out by the French text, which speaks of 
"une agression armee. " The expression "armed attack" denotes the illegal use of 
armed force (i.e., recourse to violence) against a State. 

For an illegal use of force to acquire the dimensions of an armed attack, a min- 
imal threshold has to be reached. Since Article 2(4) of the Charter forbids "use of 
force" and Article 51 allows taking self-defense measures only against an "armed 
attack," a gap is discernible between the two stipulations. 12 The gap is due to the 
fact that an illegal use of force not tantamount to an armed attack may be 
launched by one State against another, but then (in the absence of an armed at- 
tack) self-defense is not an option available to the victim. Logically and pragmat- 
ically, the gap has to be quite narrow, inasmuch as "there is very little effective 
protection against states violating the prohibition of the use of force, as long as 
they do not resort to an armed attack." 13 If a victim State is barred from respond- 
ing with counter-force to force, this ought to be confined to the sphere of appli- 
cation of the ancient apothegm de minimis non curat lex. In other words, all that 
the gap conveys is that the illicit use of force has to be of sufficient gravity. 14 
When the use of force is trivial — say, a few stray bullets are fired across a fron- 
tier — no armed attack can be alleged to have occurred. 15 In that case, there is no 
room for forcible counter-measures of self-defense. 16 By contrast, when the use 
of force is of sufficient gravity, an armed attack is in progress even if it is charac- 
terized by small magnitude. Aufond, whenever a lethal result to human be- 
ings — or serious destruction to property — is engendered by an illegal use of 
force by State A against State B, that use of force will qualify as an armed attack. 
The right to employ counter-force in self-defense against State A can then be in- 
voked by State B (and, as we shall see infra, also by State C). 

To better understand the legal position, it is necessary to distinguish between 
an armed attack, on the one hand, and an ordinary breach of international 
law — or even a mere unfriendly act — on the other. 

State A can commit an unfriendly act against State B without thereby being in 
breach of any binding norm of international law. Such unfriendly conduct by 

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State A is liable to upset State B. It may cause the latter psychological embarrass- 
ment or even material harm in the political, diplomatic, or economic arena. Yet, 
as long as no breach of international law is committed, State B does not possess 
any legal standing (jus standi) for objecting to the conduct of State A. 

Acts that may highlight the phenomenon of unfriendly acts, carrying with 
them no connotations of infringement by State A of international law, are: (i) re- 
fusal to permit an official visit of State A by the Head of State B; 17 (ii) a notifica- 
tion that a member of the diplomatic staff of State B accredited to State A is 
persona non grata; 18 (hi) the prohibition of the import of certain goods from State 
B into State A (absent treaty commitments to the contrary); 19 and (iv) espionage 
carried out by clandestine agents of State A. 20 The fact that, strictly speaking, all 
these activities — and similar ones in the same vein — are legal (albeit unfriendly) 
does not mean that State B is completely helpless in terms of potential response. 
State B may opt to indulge in "retorsion" by taking equally legal yet unfriendly 
steps (such as a reciprocal expulsion of diplomats sent by State A). 21 

A breach of international law transcends unfriendliness, crossing the red line 
of illegality. If State A ignores the immunity from local jurisdiction enjoyed by 
duly accredited diplomatic agents of State B; 22 if State A's trawlers fish in the ex- 
clusive economic zone off the coast of State B; 23 if State A fails to extradite a fu- 
gitive from State B notwithstanding clear-cut obligations in a treaty concluded 
by them — State A will bear international legal responsibility vis-a-vis State B. In 
keeping with the international law of State responsibility, "[t]he injured State is 
entitled to obtain from the State which has committed an internationally wrong- 
ful act full reparation in the form of restitution in kind, compensation, satisfac- 
tion, and assurances and guarantees of non-repetition, either singly or in 
combination. " 24 

Seeking reparation, State B — as the injured party — may present a legal claim 
against State A before any international court or tribunal which may be vested 
with jurisdiction over the dispute. Alternative avenues are also open. State B is 
always free to bring the dispute with State A to the attention of the Security 
Council [under Article 35(1) of the Charter 25 ]. The Council may then recom- 
mend appropriate methods of adjustment [pursuant to Article 36(1) 26 ] or even 
determine the existence of a threat to the peace (in compliance with the 
above-mentioned Article 39). 27 Acting on its own, State B may also apply 
non-forcible reprisals against State A 28 (e.g., by declining to extradite a fugitive 
from State A under the same treaty provision). A reprisal differs from retorsion in 
that the act in question (non-extradition) would have been illegal — in light of 
the treaty obligations postulated — but for the prior illegal act of State A. 29 
Whichever channel of response is chosen by State B against State A, the 



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Computer Network Attacks and Self-Defense 



quintessential point is that, as a rule, the fact that State A incurs international re- 
sponsibility towards State B does not create for State B a legitimate option to ini- 
tiate force against State A. Even an ordinary violation of the UN Charter itself 
does not excuse response by force. 

The only time — consistent with the Charter — when State B (without acting 
at the behest of the Security Council) may lawfully wield force against State A, in 
response to an illegal act by State A, is when that illegal act amounts to an armed 
attack and the counter-measures can be appropriately subsumed under the head- 
ing of self-defense. 

Computer Network Attacks (CNAs) 

The scientific and technological revolution, which has rendered the com- 
puter ubiquitous, has also "changed the scope and pace of battle." 30 This is evi- 
dent to all where the computer serves as an instrument of command, control, 
communications, and intelligence (not to mention simulation, surveillance, 
sensors, and innumerable other military purposes). But the modern computer 
can also become a weapon in itself by being aligned for attack against other com- 
puter systems serving the adversary. A "computer network attack" (CNA) can 
occur either in wartime — in the midst of on-going hostilities — or in peacetime. 
The former situation is governed by the jus in hello and does not come within the 
scope of the present paper. The question to be analyzed here is the latter. More 
specifically, the fulcrum of our discussion is whether a CNA mounted in peace- 
time may be categorized as an armed attack, thus justifying forcible counter- 
measures of self-defense in compliance with the jus ad helium. 

A CNA is often defined inadequately as disrupting, denying, degrading, or 
destroying either information resident in a computer network or the network it- 
self. 31 This definition is rooted in a presupposition that a CNA is no more than a 
device to counter the antagonist's electronic capabilities. Had the definition 
been legally binding — or had it factually mirrored the whole gamut of the tech- 
nical capabilities of the computer — the likelihood of a CNA ever constituting a 
full-fledged armed attack would be scant. However, whereas CNAs recorded 
heretofore have admittedly been circumscribed to operations of intrusion and 
disruption, it would be extremely imprudent to extrapolate current restraints 
into the years ahead. A credible forecasting of future developments must start 
from the indisputable premise that potential CNAs (by feeding false messages 
into a target computer system) may also encompass grievous sabotage, designed 
to leave behind a trail of death and devastation through induced explosions and 
other malicious "malfunctions." 32 

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The determination whether or not an armed attack has taken place — so as to 
justify response by way of self-defense — does not necessarily depend on the 
choice of weapons by the attacking party. The International Court of Justice 
aptly commented, in the Nuclear Weapons Advisory Opinion of 1996, that the 
provision of Article 51 does not refer to specific weapons; it applies to any armed 
attack, regardless of the weapon employed. 33 Of course, the detonation of 
weapons of mass destruction (say, nuclear warheads) makes it easier to stigmatize 
the strike as an armed attack. Still, what counts is not the specific type of ord- 
nance, but the end product of its delivery to a selected objective. After all, even 
unsophisticated pernicious tools — like the poisoning of wells in a desert 
area — may give rise to exceedingly grave results. 

From a legal perspective, there is no reason to differentiate between kinetic 
and electronic means of attack. A premeditated destructive CNA can qualify as 
an armed attack just as much as a kinetic attack bringing about the same — or sim- 
ilar — results. The crux of the matter is not the medium at hand (a computer 
server in lieu of, say, an artillery battery), 34 but the violent consequences of the 
action taken. If there is a cause and effect chain between the CNA and these vio- 
lent consequences, it is immaterial that they were produced by high rather than 
low technology. 

When a CNA emanates from within the territory of the same country in 
which the target is located (assuming that no foreign State is involved in the op- 
eration and no attempt is made to route the attack through a conduit abroad), 
this is a matter that in principle can — and should — be regulated by the domestic 
law of that country. Generally speaking, subject to few exceptions (see the next 
section), international law comes into play only at a point when the CNA turns 
into a cross-border operation. 

Even in a cross-border scenario, CNAs are not all of the same nature. It is nec- 
essary to distinguish between four discrete rubrics of CNAs originating from 
State A and directed against State B, depending on whether they are unleashed 
by: (i) individual computer hackers who are residents of State A, acting on their 
own initiative for whatever personal motive (benign or otherwise) without any 
linkage to the government of State A; (ii) terrorists 35 based in State A, acting on 
behalf of any chosen "cause" inimical to State B, unsupported by the govern- 
ment of State A; (hi) terrorists overtly or covertly sponsored by the government 
of State A; and (iv) official organs — either military or civilian — of the govern- 
ment of State A. 

The first two categories usually call for coercive action by the proper authori- 
ties of State A itself, with a view to precluding or terminating hostile acts con- 
ducted from within its territory by hackers or terrorists against State B. The 



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International Court ofjustice proclaimed, in the Corfu Channel case of 1949, that 
every State is under an obligation "not to allow knowingly its territory to be 
used for acts contrary to the rights of other States." 36 In implementing this inter- 
national obligation, State A should take resolute steps to suppress the perpetra- 
tion of hostile activities from within its territory against State B — optimally by 
preventing these acts from materializing, but minimally by prosecuting offend- 
ers after the acts have already been committed. If the government of State A fails 
to do what it is supposed to, State B (as we shall see infra) can take certain excep- 
tional counter-measures unilaterally. 

When terrorists are sponsored by State A, they may be deemed "de facto or- 
gans" of that State. 37 "[T]he imputability to a State of a terrorist act is unques- 
tionable if evidence is provided that the author of such act was a State organ 
acting in that capacity." 38 When State A chooses to operate against State B at one 
remove — pulling the strings of a terrorist organization (not formally associated 
with the governmental apparatus), rather than activating its regular armed 
forces — this does not diminish one iota from the full international responsibility 
of State A for the acts taken and their consequences, provided that "it is estab- 
lished" that the terrorists were "in fact acting on behalf of that State." 39 

The International Court ofjustice, in the Nicaragua case of 1986, explicitly 
held that an armed attack encompasses not only action by regular armed forces 
but also the employment of "irregulars." 40 Granted, not every detail in this deli- 
cate area is universally agreed upon. The majority of the Court in the Nicaragua 
Judgment added that the mere supply of arms (or providing logistical and other 
support) to armed bands cannot be equated with armed attack, 41 whereas Judges 
Schwebel andjennings sharply dissented on this point. 42 Be it as it may, there is a 
consensus that when State A goes beyond logistical support and dispatches a ter- 
rorist group to do its bidding against State B, State B can invoke self-defense 
against State A. 

In 1999, the Appeals Chamber of the International Criminal Tribunal for the 
Former Yugoslavia pronounced, in the Tadic case, that acts performed by mem- 
bers of a military or paramilitary group organized by a State "may be regarded as 
acts of de facto State organs regardless of any specific instruction by the control- 
ling State concerning the commission of each of those acts." 43 The Tribunal 
concentrated on the subordination of the group to overall control by the State. It 
opined that the State does not have to issue specific instructions for the direction 
of every individual operation, nor does it have to choose concrete targets. 44 Ter- 
rorists can thus act quite autonomously and still stay de facto organs of the con- 
trolling State. 

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The most crucial flow of events stems from a CNA undertaken overtly by of- 
ficial government organs. The intrusion of the organs of State A into the com- 
puter systems of State B may have a whole range of purposes and outcomes, for 
instance: 

(i) Espionage. As indicated supra, espionage activities conducted by 
clandestine agents are merely unfriendly acts. In singular circum- 
stances, official espionage is openly acknowledged by a State; the 
question whether the act can then be viewed as a violation of inter- 
national law is debatable. In any event, espionage per se does not 
constitute an armed attack. 

(ii) Disruption of communications and digitized services through the 
induced failure of computer systems, without causing human casu- 
alties or significant destruction of property. This is a CNA, but 
since the act (whether merely unfriendly or a transgression of inter- 
national law) does not entail sufficiently grave consequences, the 
conclusion is the same. 

(iii) Fatalities caused by loss of computer-controlled life-support sys- 
tems; an extensive power grid outage (electricity blackout) creating 
considerable deleterious repercussions; a shutdown of computers 
controlling waterworks and dams, generating thereby floods of in- 
habited areas; deadly crashes deliberately engineered (e.g., through 
misinformation fed into aircraft computers), etc. The most egre- 
gious case is the wanton instigation of a core-meltdown of a reactor 
in a nuclear power plant, leading to the release of radioactive mate- 
rials that can result in countless casualties if the neighboring areas 
are densely populated. In all these cases, the CNA would be 
deemed an armed attack. 

A salient point is that an excessive computer dependency creates a special 
vulnerability. 48 The more technologically advanced — and, therefore, computer 
reliant — a State is, the more susceptible it is to a paralyzing CNA. Overall, State 
A may be less developed scientifically and technologically than State B. 49 Yet, 
the very advantage of State B becomes a debilitating burden once State A 
manages to penetrate State B's electronic defenses. This, writ large, is the 
scenario of a nuclear core meltdown. Through a CNA, State A — having no 
nuclear capability of its own — can in a sense "go nuclear" by exploiting the 
scientific and technological infrastructure of State B, thus turning the tables on 
the target State. State B, as it were, provides the nuclear weapon against itself (the 
weapon being triggered by agents of State A). 



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Computer Network Attacks and Self'Defense 



CNAs against Private Individuals and Corporations 

It must be appreciated that a computer system subjected to a CNA by State A 
need not belong to the government, or even to any semi-governmental agency, 
of State B. An attack may be carried out, e.g., inside US territory (or, for that 
matter, vessels flying the American flag and aircraft registered in the US) against a 
computer system operated by either a private individual or a non-governmental 
entity. The American situation is perhaps the most acute, inasmuch as public 
utilities in the US are privately owned, and, indeed, corporate America is the 
principal manufacturer of military equipment, naval platforms, and aircraft serv- 
ing the American armed forces. But anyhow, it is immaterial whether the civil- 
ian computer system under attack is operated by a civilian supplier or 
sub-contractor of the Department of Defense. Even if the CNA impinges upon 
a civilian computer system which has no nexus to the military establishment 
(like a private hospital installation), a devastating impact would vouchsafe the 
classification of the act as an armed attack. There is no immanent difference be- 
tween a CNA and a kinetic attack targeting ordinary civilian objects within the 
territory of State B. Needless to say, the bombing by State A of, e.g., an urban 
population center (apart from being unlawful per se under international human- 
itarian law, by not being directed against a military objective 50 ) constitutes an 
armed attack, albeit not a single member of the armed forces of State B is injured 
in the air-raid. The same rule is applicable to a CNA. 

Furthermore, a CNA — just like a kinetic use of force — by State A would 
qualify as an armed attack against State B even if the computer system inside the 
territory of State B (including its vessels and aircraft) is operated by an individual 
or a private corporation possessing the nationality of State C. A corporation, on 
an analogy with an individual, has a distinct nationality (that of the State under 
the laws of which it was incorporated and in whose territory it has its registered 
office). 51 But the foreign nationality of the corporate or individual operator of 
the computer system under attack is irrelevant from the perspective of State B, as 
long as the CNA is carried out within its territory. 

What happens when a CNA is inflicted by State A outside the territory of 
State B, but it affects a computer system operated by State B or one of its nation- 
als (individual or corporate)? It goes without saying that a lethal kinetic strike 
against a governmental installation of State B stationed outside its territory, 
vessels, and aircraft — such as an embassy of State B in the capital city of State C 
(or even State A) — will be deemed an armed attack against State B, notwith- 
standing the geographic disconnection from its territory. 52 This is also true of an 

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electronic attack against the computer system of State B's embassy in State C (or 
in State A) culminating with fatalities or destruction of property. 

The position differs when the target of an armed attack (kinetic or electronic) 
by State A is situated in State C, and any injury caused to State B or to its nation- 
als is coincidental. In such a case, State B cannot regard itself as the genuine ob- 
ject of the armed attack. On the other hand, if a destructive CNA is launched by 
State A within the territorial boundaries of State C (or even State A) against a 
computer system operated privately by nationals (individual or corporate) of 
State B — and the target is specifically selected on account of that national- 
ity — State B is entitled to consider the act an armed attack against itself. Thus, if 
an explosion-inducing CNA strikes a computer operated by US citizens across 
the ocean — and this is plainly done not at random but because of the American 
nationality of the operators — the act may be deemed an armed attack against the 
US (although perpetrated abroad). There are many instances in international re- 
lations in which nationals attacked abroad by State A have been protected or res- 
cued by State B in the name of self-defense. 53 This is perfectly legitimate, 
provided that the attack occurred owing to the bond of nationality existing be- 
tween the victims and State B. 54 Once more, there is no difference here between 
an electronic and a kinetic attack. 

Self-Defense Responses to CNAs 

Just as there are variable settings for the commission of an armed attack by 
State A in the form of a CNA, there are also several possible responses available 
to State B in the exercise of its right of self-defense. The most obvious response is 
"on-the-spot reaction," 55 where the computer network under attack strikes in- 
stantaneously back at the source of the CNA. The trouble, however, is that fre- 
quently the server which is seemingly the source of the CNA has only been 
manipulated by the true assailants (who have routed their attack through it), and 
swift responsive counter-measures against the intermediary conduit is liable to 
be counterproductive, as well as unlawful. 56 Establishing the genuine identity of 
the attacker — and attributing the act to the real (as distinct from apparent) ac- 
tor — is a major challenge in the present stage of technological development (see 
discussion infra). 

On the whole, the most effective modality of self-defense against an armed at- 
tack in the shape of a CNA is 1 recourse to defensive armed reprisals, to wit, forc- 
ible counter-measures undertaken at a different time and place. Armed reprisals 
as such are generally "considered to be unlawful" in peacetime. 57 But there is no 
reason why armed reprisals cannot come within the framework of self-defense 

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Computer Network Attacks and Self-Defense 



under the Charter. Armed reprisals can constitute a legitimate response to an 
armed attack within the ambit of Article 51, provided that they are genuinely 
defensive, namely, future-oriented (deterrent in character) and not 
past-oriented (confined to punitive retaliation). 58 State practice definitely shows 
that defensive armed reprisals are part and parcel of the arsenal of States subjected 
to armed attacks. 59 Indeed, falling back on defensive armed reprisals has certain 
built-in advantages. Above all, it gives State B an opportunity to review the facts 
(and determine culpability) while considering options for response. 

It should be borne in mind that defensive armed reprisals against a CNA can 
be performed kinetically even though the original armed attack (justifying them) 
was executed electronically, and vice versa. Again, whatever is permitted (or 
prohibited) when kinetic means of warfare are used is equally permitted (or pro- 
hibited) when the means employed are electronic; the rules of international law 
are the same whatever the means selected for attack. 

The ultimate type of force stimulated by self-defense may amount to (or may 
result in) war. 60 In the setting of CNAs, the outbreak of war as a counter- 
measure of self-defense would be rare. Due to the conditions precedent to the 
waging of war as an exercise of self-defense (see discussion infra), war would 
constitute a proper response to a CNA only in far-fetched scenarios (such as the 
calculated prompting of a nuclear core meltdown). 

Sometimes, State A — constrained by political or military consider- 
ations — would passively tolerate the use of its territory as a base for activities by 
terrorists against State B, without actively sponsoring those activities or even en- 
couraging them. 61 Such a turn of events would not cloak the terrorists with a 
mantle of protection from State B. "If a host country permits the use of its terri- 
tory as a staging area for terrorist attacks when it could shut those operations 
down, and refuses requests to take action, the host government cannot expect to 
insulate its territory against measures of self-defense." 62 As already epitomized in 
the classical Caroline incident of 1837, 63 State B may legitimately invoke 
self-defense to exert counter-force within the territory of State A — targeting 
armed bands which use that territory as a springboard for operations against State 
B — when the host government remains inert. The present writer calls such a 
mode of self-defense "extra-territorial law enforcement," 64 while others prefer 
the term "state of necessity." 65 What counts, however, is the substance of the 
law and not the formal appellation. The substance of the law in this respect re- 
lates to electronic, as much as kinetic, terrorism against State B originating in 
State A. 

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The Three Conditions of Self-Defense 

Three cumulative conditions to the exercise of self-defense are well- 
entrenched in customary international law: (i) necessity, (ii) proportionality, and 
(iii) immediacy. The first two conditions were articulated in the 1986 Nicaragua 
Judgment, 66 and reiterated in the 1996 Nuclear Weapons Advisory Opinion. 67 
Immediacy, while glossed over in the Court's rendering of the law, is of equal 
specific weight. 68 

Necessity primarily denotes "the non-existence of reasonable peaceful alter- 
native measures." 69 Differently put, non-forcible remedies must either prove 
futile in limine or have in fact been exhausted in an unsatisfactory manner; the 
upshot is that there is no effective substitute for the use of force in self-defense. In 
the context of a CNA, it is requisite to ascertain that the CNA is no accident, to 
verify the genuine identity of the State — or non-State entity — conducting the 
attack (so as not to jeopardize innocent parties), and to conclude that the use of 
force as a counter-measure is indispensable. Should there be an opportunity to 
settle the matter amicably through negotiations, these must be conducted in 
good faith. 70 

The second condition is chiefly relevant to defensive armed reprisals under- 
taken in a situation "short of war." The counter-measures taken by State B 
(kinetically or electronically) must not be out of proportion with the act 
prompting them. 71 A modicum of symmetry between force and coun- 
ter-force — injury inflicted on State B by the armed attack versus damage sus- 
tained by State A by dint of the self-defense counter-measures — is called for. 

Since CNAs are often discharged in a cluster — and inasmuch as each one of 
them, when examined in isolation, may appear to have only a minor 
("pin-prick") adverse effect, yet, when assessed in their totality, the results may 
be calamitous — the question is whether defensive armed reprisals may be under- 
taken in proportion to the cumulative effect of the sequence of attacks. 72 The is- 
sue, which ordinarily arises in the face of assaults by terrorists, is not free of 
difficulties. 73 But there is some authority for the position that a State suffering 
from a series of small-scale attacks is permitted to respond to them aggregately in 
a single large-scale forcible counter-measure. 74 This would equally apply to 
CNAs. 

The balance between the quantum of force and counter- force, which is the 
key to the legitimacy of defensive armed reprisals, is not germane to war as the 
ultimate manifestation of self-defense in response to an armed attack. 75 Once 
war is in progress, it may be fought to the limit (subject to the exceptions and 
qualifications decreed by international humanitarian law), and there is no 

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Computer Network Attacks and Self-Defense 



mandatory correspondence between the scale of force expended by the oppos- 
ing sides. 76 The meaning of proportionality in the concrete circumstances of war 
is that the use of comprehensive counter-force in the exercise of self-defense 
must be warranted by the critical character of the original armed attack. 77 Once 
the vital justification of a war of self-defense by State B against State A is recog- 
nized, there is no additional need to ponder the defensive disposition of every 
single measure taken by State B. From the outset of a war of self-defense until its 
termination (which is not to be confused with the suspension of hostilities 
through a cease-fire 78 ), the legitimacy of every instance of the use of force by 
State B against State A is covered by the jus ad bellum (albeit not necessarily by the 
jus in hello). Admittedly, where CNAs are concerned, a war of self-defense 
would be vindicated as an appropriate response only in outre circumstances (such 
as the catastrophic event of a CNA-induced nuclear core meltdown). 

Immediacy intrinsically suggests that the activation of self-defense counter- 
measures must not be too tardy. Still, this condition is construed "broadly." 79 
There may be a time-lag of days, weeks, and even months between the original 
armed attack and the sequel of self-defense. The delay may be particularly glar- 
ing after a CNA, since in cyberspace activities can produce reverberations 
around the world "in the time that it takes to blink an eye." 80 Still, lapse of time 
is almost unavoidable when — in a desire to fulfill the letter and spirit of the con- 
dition of necessity— a slow process of diplomatic negotiations evolves, with a 
view to resolving the matter amicably. 81 

Interceptive Self-Defense 

The gist of Article 51 of the Charter is that there is no legitimate self-defense 
sans an armed attack. All the same, an armed attack need not start with the open- 
ing of fire on the aggrieved party. In fact, at times, it is the victim of an armed at- 
tack who fires the first shot. For an obvious example, suffice it to postulate that 
military formations commissioned by State A intentionally cross the frontier of 
State B and then halt, positioning themselves in strategic outposts well within 
the territory of State B (the movement of Pakistani troops into Indian Kashmir 
in 1999 is a good case in point 82 ). If the invasion takes place in a region not easily 
accessible and lightly guarded, it is entirely conceivable that some time would 
pass before the competent authorities of State B grasp what has actually tran- 
spired. In these circumstances, it may very well ensue that the armed forces of 
State B would be instructed to dislodge from their positions the invading contin- 
gents belonging to State A, and that fire be opened first by soldiers raising the 
banner of State B. Nevertheless, since the international frontier has been crossed 

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by the military units of State A without the consent of State B, State A cannot re- 
lieve itself of responsibility for an armed attack. 

As a matter of fact (and law), an armed attack may be viewed as a foregone 
conclusion even though no fire has been opened (as yet) and no international 
frontier has been crossed. Thus, hypothetically, had the Japanese aircraft en 
route to Pearl Harbor on December 7, 1941, been intercepted and shot down 
over the high seas by US air forces, Japan would still have incurred responsibility 
for the armed attack that triggered the Pacific War. 83 A more up-to-date sce- 
nario would be that of a missile site whose radar is locked on to a target in prepa- 
ration for fire. 84 The linchpin question in analyzing any situation is whether the 
die has been cast. Resort to counter- force in the exercise of self-defense cannot 
be purely preventive in nature, inasmuch as threats alone do not form an armed 
attack. Still, if it is blatant to any unbiased observer that an armed attack is incipi- 
ent or is on the verge of beginning, the intended victim need not wait impo- 
tently for the inescapable blow; the attack can legitimately be intercepted. 
Interceptive (in contradistinction to anticipatory) self-defense comes within the 
purview of permissible self-defense under the Charter. The theme of intercep- 
tive self-defense is apposite to a CNA when an intrusion from the outside into a 
computer network has been discovered, although, as yet, it is neither lethal to 
any person nor tangibly destructive of property. The issue is whether the intru- 
sion can plausibly be construed as the first step of an inevitable armed attack, 
which is in the process of being staged (analogous to the detection of attack air- 
craft en route to their objectives) . It is a matter of evaluation on the ground of the 
information available at the time of action (including warnings, intelligence re- 
ports, and other data), reasonably interpreted. 85 

The Attribution of CNAs to a State 

Reference has already been made to the problem of attribution to State A of a 
CNA as an armed attack for which responsibility devolves on that State. As ob- 
served, in the present state of the art, it is often by no means clear who originated 
the CNA. The inability to identify the attacker undermines in practice the theo- 
retical entitlement of State B to resort to forcible counter-measures in self- 
defense. 86 State B must not rush headlong to hasty action predicated on reflexive 
impulses and unfounded suspicions; it has no choice but to withhold forcible re- 
sponse until hard evidence is collated and the state of affairs is clarified, lest the 
innocent be endangered. However, the following points should be recalled: 

(i) The same problem arises in many other situations, for instance 
when acts of terrorism are committed kinetically. Frequently, 

111 



Computer Network Attacks and Self'Defense 



either the perpetrators of the terrorist attack act anony- 
mously — leaving no signature — or those "taking credit" are unfa- 
miliar. Since States sponsoring terrorism usually try to conceal their 
role: holding such States accountable for their misdeeds may be 

87 

fraught with great difficulties. Prior to determining its options in 
combating terrorism, the victim State must establish a linkage be- 

88 

tween the terrorists and their sponsoring State. CNAs invite a 
similar approach. 

(ii) Not always is attribution shrouded in doubt for long. In the past, 
wars began with bombings and bombardments. In the future, they 
are increasingly likely to start with CNAs. But recourse to a CNA 
does not mean that the enemy wishes to remain incognito indefi- 
nitely. It is within the realm of the possible that a CNA will be 
merely the precursor of a wave of later attacks, which will be 
mounted with traditional means and be easily traceable to an irre- 
futable source. Hence, it would be a mistake to assume that a CNA 
inevitably manifests an attempt at deception and perfidy. The CNA 
may be designed merely to achieve surprise and cause temporary 
havoc, without trying to hide the identity of the perpetrator for a 
prolonged stretch of time. 

(iii) Future advances in technology are likely to make it much easier to 
identify the attacker, just as current — unlike past — technology en- 
ables the immediate registration of the source of an incoming tele- 
phone call (although, patently, identification of that source does 
not conclusively establish which person is actually making the tele- 
phone call; the same is true of the user of a computer). 

Collective Self-Defense 

Pursuant to Article 51 of the Charter, collective — no less than individ- 
ual — self-defense is permissible against an armed attack. The rule does not dis- 
criminate between different classes of armed attacks, and therefore it pertains 
inter alia to a CNA crossing the threshold of an armed attack. The right to collec- 
tive self-defense means that any third State in the world 89 (State C) is free to join 
State B in bringing forcible measures to bear against State A, with a view to re- 
pelling an armed attack. The occurrence of an armed attack by State A against 
State B as a conditio sine qua non to the exercise of collective self-defense against 
State A by State C was underscored by the International Court of Justice in the 

112 



Yoram Dinstein 



Nicaragua case. 90 The majority of the Court further held that State C may not ex- 
ercise that right unless and until State B has first declared that it has been subjected 
to an armed attack by State A. 91 This dictum has been cogently challenged in a dis- 
sent by Judge Jennings, 92 but it may have some merit against the background of a 
CNA. Certainly, States B and C must see eye to eye on the identification of an 
elusive attacker. State C is enjoined from taking collective self-defense action 
against State A if State B (the immediate target) declines to confirm that State A is 
indeed accountable for a CNA constituting an armed attack. 

The exercise of collective self-defense in conformity with the Charter is a 
right and not a duty. The right can be transformed into a duty should States B and 
C become contracting parties to a mutual assistance treaty or a treaty of guarantee, 
and a fortiori to a military alliance. 93 Thus, if State B happens to be a member of 
NATO, other members of the alliance are expected to extend military aid when an 
armed attack occurs against it (within certain geographic bounds). 94 But there is no 
need for a collective self-defense treaty to exist between State B and State C. 
State C is competent to act spontaneously — appraising events as they unfold — and 
it can do so whether the armed attack against State B is kinetic or electronic. 

The Supervision of the Security Council 

Article 51 of the Charter sets forth that the right of self-defense may be exer- 
cised until the Security Council has taken the measures necessary to maintain in- 
ternational peace and security. Under the article, a State invoking self-defense 
must immediately report to the Council what steps it has taken, and these steps 
do not diminish from the authority of the Council to take any action it deems 
necessary. As the International Court of Justice enunciated in the Nuclear 
Weapons Advisory Opinion, the "requirements of Article 51 apply whatever the 
means of force used in self-defence." 95 There is thus no difference between ki- 
netic and electronic counter-measures. 

Three thorny aspects of the Security Council's supervisory powers deserve to 
be mentioned. First, as a matter of fact, "[relatively few communications have 
been circulated expressly to meet the Charter obligation to report immediately 
to the Council on measures taken in the exercise of the right of individual or col- 
lective self-defence after an armed attack has occurred (Article 51)." 96 As a mat- 
ter of law, however, a failure to report to the Security Council about engaging in 
self-defense against a CNA may be perilous. In its Judgment in the Nicaragua 
case, the majority of the Court implied that a State may be precluded from rely- 
ing on the right of self-defense if it fails to comply with the requirement of re- 
porting to the Council. 97 Judge Schwebel dissented, holding that the reporting 

113 



Computer Network Attacks and Self'Defense 



duty is a procedural matter and that therefore nonfeasance must not deprive the 
State concerned of its substantive cardinal right to self-defense. 98 The dissent is 
quite persuasive, but the majority's position cannot simply be disregarded. 

Second, the Security Council's record since its inception is not such as to instill 
much confidence in the likelihood of its taking the necessary remedial action for 
the maintenance of international peace and security, thus avoiding any further 
need of unilateral self-defense against an armed attack. Once the Council's inac- 
tion was largely due to the Cold War and the abuse of the veto power by Perma- 
nent Members, each voting in tandem with the political interests of the bloc 
which it led or to which it belonged. Regrettably, even recent permutations in 
Big Power politics have not revived the faith in the Security Council's role as an 
above-the-fray arbiter of all armed conflicts in the international community. 

Third, it is by no means clear what sort of resolution adopted by the Security 
Council would divest States of the right to embark upon unilateral use of force in 
self-defense against an armed attack. Surely, the Council is fully empowered to 
override specious claims to self-defense and adopt a legally binding decision to the 
effect that allegedly defensive measures must stop forthwith. But this does not 
mean that "any measure" adopted by the Council "would preempt self- 
defense." 99 Short of an explicit decree by the Council to discontinue the use of 
force, the State acting in self-defense retains its right to do so until the Council has 
taken measures which have actually "succeeded in restoring international peace 
and security." 100 Only effective measures that would not leave the victim State 
defenseless can terminate or suspend the exercise of the right of self-defense. 101 

Conclusion 

The introduction of any new weapon into the arsenal of inter-State conflict 
raises first and foremost the issue of its legality. Under Article 36 of Additional 
Protocol I (of 1977) to the Geneva Conventions, any State adopting (or even 
developing) a new weapon must first determine whether or not it is prohibited 
by international law; 102 this norm appears to reflect customary international 
law. 103 CNAs are not incorporated in any present list of proscribed weapons un- 
der the lex lata. Evidently, there is a separate issue de legeferenda whether man- 
kind would not be better off by legally banning them altogether. The dilemma 
will probably be debated with growing intensity as the incidence of CNAs leaves 
their mark on the evolution of armed conflict. 

The novelty of a weapon — any weapon — always baffles statesmen and 
lawyers, many of whom are perplexed by technological innovations. It is 
perhaps natural to believe that a new weapon cannot easily intermesh with the 

114 



Yoram Dinstein 



pre-existing international legal system. In reality, after a period of gestation, it 
usually dawns on belligerent parties that there is no insuperable difficulty in ap- 
plying the general principles and rules of international law to the novel weapon 
(subject to some adjustments and adaptations, which crystallize in practice). It 
can scarcely be denied that, unless legally excluded in advance, CNAs are almost 
bound to play a pivotal role as a first-strike weapon in the commencement of fu- 
ture hostilities. The challenge is to study now the most efficacious means of re- 
sponse to this ominous prospect. 

Notes 

1. For a general treatment of the subject, see Y. DINSTEIN, WAR, AGGRESSION AND 
SELF-DEFENCE (3d. ed. 2001). 

2. Charter of the United Nations, 1945, 9 INTERNATIONAL LEGISLATION 327, 332 (M.O. 
Hudson ed., 1950). 

3. See the Judgment of the International Court of Justice in Military and Paramilitary 
Activities in and against Nicaragua (Nicaragua v. United States.), 1986 I.C.J. 14, 96-97 (merits). 

4. Report of the International Law Commission, 18th Session, [1966] II YEARBOOK OF 

the International Law Commission 172, 247. 

5. Consult the text of Article 53 of the 1969 Vienna Convention on the Law of Treaties, 

[1969] United Nations Juridical Yearbook 140, 154. 

6. Nicaragua Judgment, supra note 3, at 100. 

7. Id. at 153 (President Singh), 199 (Judge Sette-Camara). 

8. J. Mrazek, Prohibition of the Use and Threat of Force: Self-Defence and Self Help in International 

Law, 27 Canadian Yearbook of International Law 81, 90 (1989). 

9. UN CHARTER, supra note 2, at 343-344. 

10. Id. at 346. 

11. Id. at 343. 

12. See A. Randelzhofer, Article 51, in THE CHARTER OF THE UNITED NATIONS: A 
COMMENTARY 661, 664 (B. Simma ed., 1995). 

13. Id. 

14. Cf. Article 2 of the consensus Definition of Aggression adopted by the UN General 
Assembly in 1974. General Assembly Resolution 3314 (XXIX), 29(1) RESOLUTIONS ADOPTED 
by the General Assembly 142, 143 (1974). 

15. Cf. B. Broms, The Definition of Aggression, 154 RECUEIL DES COURS 299, 346 (1977). 

16. In the Nicaragua case, the majority of the International Court of Justice envisaged 
legitimate counter-measures "analogous" to but less grave than self-defense in response to use of 
force which is less grave than an armed attack (without ruling out the possibility that these 
counter-measures would involve the use of force by the victim State). Nicaragua Judgment, supra 
note 3, at 1 10. However, absent an armed attack, the only counter-measures available to the victim 
State are short of force; self-defense is ruled out even by analogy. 

17. Unless there exists a treaty between the two countries calling for periodic consultations 
between their respective Heads of States. In such an instance, refusal to allow the visit might rise 
above mere unfriendliness and be branded as a breach of the treaty. 

18. Such a notification is permissible at any time — without any need to explain the 
decision — under Article 9 of the 1961 Vienna Convention on Diplomatic Relations, 500 UNITED 

Nations Treaty Series 95, 102. 



115 



Computer Network Attacks and Self-Defense 



19. See [1976] DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577-578 
(E.C. McDoweU ed., 1977). 

20. "Clandestine agents: spies . . . are not official agents of states for the purpose of international 
relations:" the home State usually disavows them, although — if caught in the act — the State upon 
whom they spied is likely to punish them severely under its domestic law. 1(2) OPPENHEIM'S 
INTERNATIONAL LAW 1176-1177 (R.Jennings & A. Watts eds., 9th ed. 1992). 

21 . SeeJ.P. Partsch, Retorsion, in 9 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 335, 
336 (R. Bernhardt ed., 1986). 

22. As prescribed in Article 31 of the Vienna Convention on Diplomatic Relations, supra note 
18, at 112. 

23. See Part V (Articles 55—75) of the 1982 United Nations Convention on the Law of the Sea, 
Official Text, 18-27. 

24. International Law Commission, Draft Articles on State Responsibility [Article 42(1)], 37 

International Legal Materials 440, 454 (1998). 

25. UN CHARTER, supra note 2, at 341. 

26. Id. at 342. 

27. It is important to distinguish between the function of the Security Council in 
recommending appropriate methods of adjustment [under Article 36(1)] and its authority to legally 
bind Member States to comply with such procedures (or other measures) pursuant to Chapter VII 
of the Charter (Article 39 et seq.). See V. Gowlland-Debbas, Security Council Enforcement Action and 
Issues of State Responsibility, 43 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 55, 83 
(1994). 

28. The International Law Commission calls reprisals "countermeasures" and subjects them 
to certain conditions. See Articles 47-50 of the Draft Articles, supra note 24, at 456—458. 

29. See O. SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 185 (1991). 

30. SeeJ.R. Sculley,. Computers, Military Use of, 2 INTERNATIONAL MILITARY AND DEFENSE 

Encyclopedia 617 (T.N. Dupuy ed., 1993). 

31. See M.N. Schmitt, Computer Network Attack and the Use of Force in International Law: 
Thoughts on a Normative Framework, 37 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 885, 
888 (1999). 

32. See M.N. Schmitt, Future War and the Principle of Discrimination, 28 ISRAEL YEARBOOK 
ON HUMAN RIGHTS 51, 78 (1998). 

33. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996, 35 

International Legal Materials 809, 822 (1996). 

34. It is noteworthy that nowadays there is less to the distinction than meets the eye, inasmuch 
as a modern artillery battery is likely to be directed by a computer. 

35. The term "terrorists," as used in this paper, includes not only political groups but also 
crime rings, esoteric cults, and any other violent non-State actors who may acquire the 
technological capability to engage in a CNA. See D.C. Gompert, National Security in the Information 
Age, 51(4) NAVAL WAR COLLEGE REVIEW 22, 33 (1998). 

36. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (merits). 

37. See R. Ago, Fourth Report on State Responsibility, [1972] II YEARBOOK OF THE 

International Law Commission 71, 120. 

38. L. Condorelli, The Imputability to States of Acts of International Terrorism, 19 ISRAEL 
Yearbook on Human Rights 233, 234 (1989). 

39. The quotation is from Article 8(a) of the International Law Commission's Draft Articles. 
supra note 24, at 444. Cf G. Townsend, State Responsibility for Acts ofDe Facto Agents, 14 ARIZONA 

Journal of International and Comparative Law 635, 638 (1997). 

40. Nicaragua Judgment, supra note 3, at 103. 

41. Id. at 104. 



116 



Yoram Dinstein 



42. Id. at 349, 543. 

43. International Tribunal for the Prosecution of Persons Responsible for Serious Violations 
of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 
1991, Prosecutor v. Dusko Tadic, Appeals Chamber, Case No. IT-94-1-A (July 15, 1999), 
Judgment, para. 137. 

44. Id. 

45. See Q. Wright, Legal Aspects of the U-2 Incident, 54 AMERICAN JOURNAL OF 

International Law 836, 850 (1960). 

46. SeeE. Rauch, Espionage, in 3 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 171, 
172 (R. Bernhardt ed., 1982). 

47. See L.R. Beres, On International Law and Nuclear Terrorism, 24 GEORGIA JOURNAL OF 

International and Comparative Law 1, 28 (1994-1995). 

48. See R.G. Hanseman, The Realities and Legalities of Information Warfare, 42 AIR FORCE LAW 
REVIEW 173, 191-195 (1997). 

49. State B may recruit foreign professional "hackers" as mercenaries in its service. For a recent 
treatment of the intricate topic of mercenaries, see D. Kritsiotis, Mercenaries and the Privatization of 
Warfare, 22(2) FLETCHER FORUM OF WORLD AFFAIRS 11-25 (1998). 

50. See H.B. Robertson, The Principle of the Military Objective in the Law of Armed Conflict, THE 

Law of Military Operations: Liber Amicorum Professor Jack Grunawalt 
197-223 (M.N. Schmitt ed. 1998) (Vol. 72, US Naval War College International Law Studies). 

51. Barcelona Traction, Light and Power Company, Limited (Second Phase), 1970 I.C.J. 3, 42. 

52. "The massively destructive bombings of the [US] embassies in Kenya and Tanzania [in 
1998], with a horrific loss of life, were clearly 'armed attacks' that allowed forcible measures of 
self-defense, even under the most stringent reading of UN Charter requirements." R. 
Wedgwood, Responding to Terrorism: The Strikes against Bin Laden, 24 YALE JOURNAL OF 
International Law 559, 564 (1999). 

53. For international practice confirming that the protection and rescue of nationals abroad is 
carried out in the exercise of self-defense, see N. RONZITTI, RESCUING NATIONALS ABROAD 

through Military Coercion and Intervention on Grounds of Humanity 
30-44 (1985). 

54. See DINSTEIN, supra note 1, at 204-207. 

55. For "on-the-spot reaction," see id. at 192-194. 

56. On this problem, see M.R. Shulman, Legal Constraints on Information Warfare, Air War 
College, Center for Strategy and Technology, Occasional Paper No. 7, at 6 (1999). 

57. See Advisory Opinion, supra note 33, at 823. 

58. See DINSTEIN, supra note 1, at 199-200. 

59. The best illustration of a defensive armed reprisal (against State-sponsored terrorism) is the 
US air-raid on Libyan targets in 1986 (in response to a bomb, which exploded in Berlin, killing two 
American servicemen and wounding many others). See W.V. O'Brien, Reprisals, Deterrence and 
Self-Defense in Countertenor Operations, 30 VIRGINIA JOURNAL OF INTERNATIONAL LAW 421, 
463-467 (1989-1990). 

60. See P.C. JESSUP, A MODERN LAW OF NATIONS 163 (1948). 

61. On the difference between State terrorism, State-assisted or State-encouraged terrorism, 
and State-tolerated terrorism, see S. Sucharitkul, Terrorism as an International Crime: Questions of 
Responsibility and Complicity, 19 ISRAEL YEARBOOK ON HUMAN RIGHTS 247, 256-257 
(1989). 

62. Wedgwood, supra note 52, at 565. 

63. For the facts of this famous incident, see R.Y.Jennings, The Caroline and McLeod Cases, 32 

American Journal of International Law 82, 82-89 (1938). 

64. See DINSTEIN, supra note 1, at 213-221. 



117 



Computer Network Attacks and Self-Defense 



65. See O. Schachter, The Lawful Use of Force by a State against Terrorists in Another Country, 19 

Israel Yearbook on Human Rights 209, 228-229 (1989). 

66. Nicaragua Judgment, supra note 3, at 94. 

67. Nuclear Weapons Advisory Opinion, supra note 33, at 822. 

68. On immediacy, see DlNSTEIN, supra note 1, at 183-184. 

69. L. Stuesser, Active Defense: State Military Response to International Terrorism, 17 

California Western International Law Journal 1, 31 (1987-1988). 

70. See C.A. Fleischhauer, Negotiation, in 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL 
LAW 152, 153 (R. Bernhardt ed., 1981). 

71. This was established already in 1928, in the well-known Arbitral Award in the Naulilaa 
case, 2 REPORTS OF INTERNATIONAL ARBITRAL AWARDS 1011, 1028 (French text). For a 
summary in English, see [1927-1928] ANNUAL DIGEST OF PUBLIC INTERNATIONAL LAW CASES 
526, 527. 

72. See N.M. Feder, Reading the UN Charter Connotatively : Toward a New Definition of Armed 

Attack, 19 New York University Journal of International Law and Politics 395, 
415-416 (1986-1987). 

73. See J.F. Murphy, Force and Arms, in 1 UNITED NATIONS LEGAL ORDER 247, 260 (O. 
Schachter & C.C. Joyner eds., 1995). 

74. See R. Ago, Addendum to Eighth Report on State Responsibility, [1980] II (1) YEARBOOK OF 
the International Law Commission 13, 69-70. 

75. There is no support in the practice of States for the notion [advocated by J.G. Gardam, 
Proportionality and Force in International Law, 87 AMERICAN JOURNAL OF INTERNATIONAL LAW 
391, 404 (1993)] that proportionality remains relevant — and has to be constantly 
assessed — throughout the hostilities in the course of war. 

76. Presumably, this is why R. Ago said in his Report to the International Law Commission 
that "the action needed to halt and repulse the attack may well have to assume dimensions 
disproportionate to those of the attack suffered." Ago, supra note 74, at 69. 

77. See DlNSTEIN, supra note 1, at 208-209. 

78. Such confusion is apparent when redundant legitimation is sought for the American and 
British air campaign against Iraq since December 1998 [see, e.g., S.M. Condron, Justification for 
Unilateral Action in Response to the Iraqi Threat: A Critical Analysis of Operation Desert Fox, 161 
MILITARY LAW REVIEW 115-180 (1999)]. The Gulf War, which started with an Iraqi armed 
attack against Kuwait in August 1990, is not over at the time of writing. The cease-fire of 1991 did 
not terminate the war. 

79. K.C. Kenny, Self-Defence, in 2 UNITED NATIONS: LAW, POLICIES AND PRACTICE 1162, 
1167 (R. Wolfrum ed.,"l995). 

80. D. Goldstone & B.E. Shave, International Dimensions of Crimes in Cyberspace, 22 FORDHAM 
INTERNATIONAL LAW JOURNAL 1924, 1941 (1998-1999). 

81 . The Gulf War is a prime example. The invasion of Kuwait by Iraq took place on August 2, 
1990. The Security Council authorized the use of "all necessary means" as from January 15, 1991 
(namely, after almost half a year). Security Council Resolution 678 (1990), 29 INTERNATIONAL 
Legal Materials 1565, id. (1990). 

82 . For the Kashmir incident, see 45 KEESING'S RECORD OF WORLD EVENTS 42997 ( 1 999) . 

83. See DlNSTEIN, supra note 1, at 172. 

84. See T.D. Gill, Tlie Forcible Protection, Affirmation and Exercise of Rights by States under 
Contemporary International Law, 23 NETHERLANDS YEARBOOK OF INTERNATIONAL LAW 105, 
111-112(1992). 

85. "Hindsight can be 20/20; decisions at the time may be clouded with the fog of war." G.K. 
Walker, Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Have Said, THE LAW 
OF MILITARY OPERATIONS, supra note 50, at 365, 393. Although the statement is made about 



118 



Yoram Dinstein 



anticipatory action (which is inadmissible in the opinion of the present writer), it is equally 
applicable to interceptive self-defense. 

86. See W.G. SHARP, SR., CYBERSPACE AND THE USE OF FORCE 133 (1999). 

87. SeeA.D. Softer, Terrorism, the Law, and the National Defense, 1 26 MILITARY LAW REVIEW 
89, 98 (1989). 

88. See J. P. Terry, An Appraisal of Lawful Military Response to State- Sponsored Terrorism, 39(3) 
NAVAL WAR COLLEGE REVIEW 59, 60-61 (1986). 

89. That is to say, Greece may respond to an armed attack against Peru. See M. AKEHURST, 

Modern Introduction to International Law 317-318 (P. Malanczuk ed., 7th ed. 1997). 

90. Nicaragua Judgment, supra note 3, at 110. 

91. Id. at 104. 

92. Id. at 544-545. 

93. On the different categories of collective self-defense treaties, see DINSTEIN, supra note 
1, at 226-236. 

94. North Atlantic Treaty, 1949, 34 UNITED NATIONS TREATY SERIES 243, 246. 

95. Nuclear Weapons Advisory Opinion, supra note 33, at 822. 

96. S.D. Bailey & S. Daws, The Procedure of the UN Security Council 103 
(3d ed. 1998). 

97. Nicaragua Judgment, supra note 3, at 121—122. 

98. Id. at 376-377. 

99. See O. Schachter, United Nations Law in the Gulf Conflict, 85 AMERICAN JOURNAL OF 

International Law 453, 458 (1991). 

100. M. Halberstam, The Right to Self-Defense Once the Security Council Takes Action, 17 

Michigan Journal of International Law 229, 248 (1996-1997). 

101. see n.d. white, keeping the peace: the united nations and the 
maintenance of international peace and security 56 (1993). 

102. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts (Protocol I), 1977, THE LAWS OF ARMED 
CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 
621, 645 (D. Schindler & J. Toman eds., 3d ed. 1988). 

103. See C. Greenwood, The Law of Weaponry at the Start of the New Millennium, THE LAW OF 

Armed Conflict: Into the Next Millennium, 185, 231 (M.N. Schmitt and L.C. Green 
eds., 1998) (Vol. 71, US Naval War College International Law Studies). 



119 




I 



Self-Defense against Computer Network 
Attack under International Law 



Horace B. Robertson, Jr. 



j 



n his opening remarks to the Symposium which was the occasion for the 
)\ current consideration of the international-law constraints on computer net- 
work attack (CNA), 1 Vice Admiral A. K. Cebrowski, President of the US Naval 
War College, asked the conferees, inter alia, to pay attention to the question, 
"Does international law require us to wait until lives are lost or property dam- 
aged before we may engage in acts of self-defense? 2 This is a question that has 
troubled international decision-makers and legal scholars for centuries. It has 
given rise to numerous and diverse opinions as to the proper threshold for the 
moment at which a potential victim State may lawfully use armed force to pro- 
tect itself before the national border has been crossed, or the bombs have begun 
to fall, or the missiles have been launched. Consideration of this subject has 
given rise to a number of theories denominated by scholars and others variously 
as "pre-emptive" strike, "anticipatory self-defense," "interceptive self-defense," 
and a variety of other terms. Determining the moment when a State may legally 
take armed defensive action as a matter of self-preservation is difficult enough in 
the arena of conventional armed attack, where military and political intent may 
be divined from concrete actions of the alleged aggressor State, such as mobiliza- 
tion of military and economic forces, movement of ground troops and/or air 
and naval forces, and military exercises which may be regarded as rehearsals for 



Self'Defense against Computer Network Attack 



armed action. But when an attack — i.e., computer network attack — can be ini- 
tiated without warning and instantaneously by a few computer strokes or clicks 
of a mouse at a location remote from the target State, 3 determining the threshold 
criteria is even more difficult. Nevertheless, the harm to a target nation and its 
infrastructure can be equally or more devastating than if kinetic forces were 
used. The destruction or impairment of critical networks controlling such activ- 
ities as domestic air control systems, electrical power systems and grids, national 
banking systems, etc., even if military command and control networks are unaf- 
fected, could cripple a nation's economy and create a public health crisis of im- 
mense proportions. 

While a leading expert in the field of network security who addressed the 
symposium assured the participants that a successful penetration of secure sys- 
tems was not as easy as some alarmists have made it out to be, 4 it is nevertheless 
generally accepted that a skilled and persistent "hacker" could penetrate and se- 
riously damage many critical infrastructures. Assuming even that such an im- 
pending attack could be predicted with reasonable certainty, an issue which will 
be discussed at a later point in this chapter, the fact that the attack could be con- 
ducted by an individual or group that may or may not be a part of the armed 
forces or otherwise officially connected to a State, raises the additional questions 
of whether such an attack can be attributed to the State in which the attack is ini- 
tiated and whether such an attack is an "armed attack" within the accepted 
meaning of that term. Or is it, in the nomenclature used by Professor Yoram 
Dinstein, only an "unfriendly act" or an "ordinary breach of international law," 5 
which, under the widely accepted view, does not come within the prohibition 
of a "threat or use of force" as that term is used in Article 2(4) of the United Na- 
tions Charter? 6 Categorization is particularly important in view of Article 51's 
mandate that authorizes resort to the "inherent" right of self-defense only "if an 
armed attack occurs against a Member of the United Nations." 7 

The principal paper on the subject of self-defense at the CNA Symposium 
was given by Professor Dinstein and is published in this commentary under the 
title, "Computer Network Attacks and Self-Defense." 8 As the moderator of a 
small group of symposium participants designated to discuss this subject follow- 
ing the presentation of the paper, I was asked to prepare additional comments on 
the subject. Rather than address all aspects of the doctrine of self-defense against 
computer network attack that were dealt with in Professor Dinstein's paper and 
in the small group discussion, I shall primarily focus in this commentary on the 
discussion which dealt with the issue raised by Admiral Cebrowski in his open- 
ing remarks — whether international law requires a State to wait until lives are 
lost or property damaged before it responds in self-defense. Professor Dinstein 



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answers this question in the negative by invoking a doctrine which he labels as 
"interceptive self-defense." 9 This subject provoked the most lively discussion in 
the small group and revealed substantial differences of opinion among the con- 
ferees. In essence, they appeared to be expressions of two schools of thought that 
find support in the legal literature on this subject. The first of these supports the 
"strict" interpretation of UN Charter Article 51, which would require that an 
armed attack have actually taken place before a victim State may respond in 
self-defense. Professor Dinstein's "interceptive self-defense" is a sub-set of this 
school, giving it some flexibility of interpretation by allowing counter-action to 
be taken in advance of the first blow being struck by an analysis of when the 
armed attack actually begins, that is, when the potential aggressor "embarks 
upon an irreversible course of action, thereby crossing the Rubicon." 10 The sec- 
ond school asserts that there exists an "inherent" right of self-defense pre-dating 
the Charter, which continues to exist alongside the law of the Charter, and per- 
mits, in some cases, "anticipatory" self-defense when an armed attack may not 
have actually occurred but, according to objective evidence, is imminent. 

The "Strict" School 

The intellectual foundation for a "strict" interpretation of Article 51 can be 
found either in a narrow or literal reading of Article 5 1 as suggested by a 
number of eminent authorities or in the interpretation elaborated by Professor 
Dinstein in his book, War, Aggression and Self-Defence, that there was no 
pre-existing law of self-defense prior to the adoption of the UN Charter, and 
thus the law of self-defense as expressed in Article 5 1 is the sole legal basis for 
exercising this right. 

One of the earlier expressions of the narrow or literal reading of Article 51 is 
found in an article by Professor Josef Kunz, who stated in 1947 that: 

[T]his right [of self-defense under Article 51] does not exist against any form of 
aggression which does not constitute "armed attack." . . . [T]his term means 
something that has taken place. Art. 51 prohibits "preventive war." The "threat 
of aggression" does not justify self-defense under Art. 51. . . . The "imminent" 
armed attack does not suffice under Art. 51. 11 

Dr. Djura Nincic makes a similar argument, stating: 

[NJothing less than an armed attack shall constitute an act-condition for the exercise 
of the right of self-defense within the meaning of Article 51 ... . It further 

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stipulates that the armed attack must precede the exercise of the right of self-defense, that 
only an armed attack which has actually materialized, which has "occurred" shall 
warrant a resort to self-defense. This clearly and explicitly rules out the 
permissibility of any "anticipatory" exercise of the right of self-defense, i.e., resort 
to armed force "in anticipation" of an armed attack. 12 

Other adherents of this view include Hans Kelsen, 13 Louis Henkin, 14 Ian 
Brownlie, 15 Hersch Lauterpacht, 16 Andrew Martin, 17 and Robert Tucker. 18 

Professor Randelzhofer, who authored the Chapters on Articles 2(4) and 51 in 
Simma's exhaustive exegesis on the UN Charter, 19 also adopts, as the "prevail- 
ing view," the strict interpretation ascribed to the aforementioned scholars. 20 
With respect to the specific question of whether a State has a right of anticipatory 
self-defense, he acknowledges that "[tjhere is no consensus in international legal 
doctrine over the point." 21 But he goes on to conclude that "Art. 51 has to be in- 
terpreted narrowly as containing a prohibition of anticipatory self-defence. 
Self-defence is thus permissible only after the armed attack has already been 
launched. " 22 His rationale for this conclusion is that since 

the (alleged) imminence of an attack cannot usually be assessed by means of 
objective criteria, any decision on this point would necessarily have to be left to 
the discretion of the state concerned. The manifest risk of an abuse of that 
discretion which thus emerges would de facto undermine the restriction to one 
particular case of the right of self-defence. 23 

Professor Dinstein also adheres to the view that a literal interpretation of Arti- 
cle 51 is required, arguing, in essence, that a right of self-defense exists if, and 
only if, an armed attack occurs. 24 He reaches that conclusion by a different route, 
however. In War, Aggression and Self-Defence, he argues, in effect, that there was 
no legally-recognized right of national self-defense prior to the adoption of the 
UN Charter. In support of that view he states: 

From the dawn of international law, writers sought to apply this [domestic law] 
concept [of self-defense] to inter-State relations, particularly in connection with 
the just war doctrine. . . . But when the freedom to wage war was countenanced 
without reservation (in the nineteenth and early twentieth centuries), concern 
with the issue of self-defence was largely a metajuridical exercise. As long as 
recourse to war was considered free for all, against all, for any reason on 
earth — including territorial expansion or even motives of prestige and 
grandeur — States did not need a legal justification to commence hostilities. The 

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Horace B* Robertson , Jr. 



plea of self-defence was relevant to the legality of forcible measures short of war, 
such as extra-territorial law enforcement .... Still, logically as well as legally, it 
had no role to play in the international arena as regards the cardinal issue of war. 
Up to the point of the prohibition of war [i.e., adoption of the UN Charter], to 
most intents and purposes, "self-defence was not a legal concept but merely a 
political excuse for the use of force." 25 

Further developing this theme, Professor Dinstein argues that the right of 
self-defense cannot be justified under either natural law or as an element of the 
sovereignty of States. With respect to the natural law he states: 

[A] reference to self-defence as a "natural right", or a right generated by "natural 
law", is unwarranted. It may be conceived as an anachronistic residue from an era 
in which international law was dominated by ecclesiastical doctrines. 26 

With respect to reliance on the principle of sovereignty as a basis for an 
"inherent" right of self-defense, he acknowledges that the series of identical 
American notes accompanying the invitations to a number of States to be- 
come parties to the Kellogg-Briand Pact lends some support to that theory. 
Those notes stated, inter alia, that the right of self-defense "is inherent in every 
sovereign state and is implicit in every treaty." 27 Professor Dinstein states, 
however, that: 

[T]he principle of State sovereignty sheds no light on the theme of self-defence. 
State sovereignty has a variable content, which depends on the stage of 
development of the international legal order at any given moment. The best 
index of the altered perception of sovereignty is that, in the nineteenth (and early 
twentieth) century, the liberty of every State to go to war as and when it pleased 
was also considered "a right inherent in sovereignty itself .... Notwithstanding 
the abolition of this liberty in the last half-century, the sovereignty of States did 
not crumble. The contemporary right to employ inter-State force in self-defence 
is no more "inherent" in sovereignty than the discredited right to resort to force at 
all times. 28 

While it is clear from Professor Dinstein's analysis that he regards a State's 
right of self-defense not to be activated until an armed attack actually occurs, 
he avoids the catastrophic consequences that might result from such a rigid doc- 
trine by walking back the time that an attack actually begins to the point where 
the incipient attacker "embarks upon an irreversible course of action, thereby 

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crossing the Rubicon." 29 He labels this as "interceptive" self-defense, which he 
distinguishes from "anticipatory" self-defense in that it requires that the other 
side "has committed itself to an armed attack in an ostensibly irrevocable way," 
rather than that the attack is merely "foreseeable." 30 

While it is true that the self-defense doctrine owes its origin to theological and 
natural-law sources, which were the foundations of the concept of the "just 
war," 31 and while Professor Dinstein is undoubtedly correct that during the 
positivist era of the 19 th and early 20 th centuries, any State was free to make war 
as an element of sovereignty, States nonetheless often continued to plead 
self-defense as a legal as well as a political or moral justification. This practice was 
more than a vestigial remnant of ecclesiastical law. States regarded it as inherent 
in their statehood; it is therefore not surprising that the term "inherent" found its 
way into Article 5 1 of the Charter. 

Although Professor Randelzhofer states that the literal or strict interpretation 
of Article 51 with its denunciation of anticipatory self-defense is the "prevailing 
view" among recognized scholars, he nevertheless admits that there is substantial 
scholarly opinion contra. He states: 

There is no consensus in international legal doctrine over the point in time from 
which measures of self-defence against an armed attack may be taken. Thus, in 
particular those authors who interpret Art. 51 as merely confirming the 
pre-existing right of self-defence consider anticipatory measures of self-defence 
to be admissible under the conditions set up by Webster in the Caroline case, i.e. 
when "the necessity of that self-defence is instant, overwhelming and leaving no 
choice of means, and no moment for deliberation." 32 

The adherents of this opposing view are both numerous and distinguished. They 
include, among others, such publicists as Oscar Schachter, Myres McDougal, 
Robert Jennings, Humphrey Waldock, and Antonio Cassese. 

Sir Humphrey Waldock was one of the earliest critics of the highly restrictive 
interpretation of Article 51 by the literalists. In his Hague lectures of 1952, Sir 
Humphrey stated: 

If an armed attack is imminent within the strict doctrine of the Caroline, then it 
would seem to bring the case within Article 51. To read Article 51 otherwise is 
to protect the aggressor's right to the first stroke. To cut down the customary 
right of self-defense beyond even the Caroline doctrine does not make sense in 
times when the speed and power of weapons of attack has enormously 
increased. 33 

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Horace B. Robertson , Jr. 



Professor Myres McDougal and Florentino Feliciano, focusing primarily on the 
Kunz and Nincic readings of the Charter text, argue that the objections to such 
readings are twofold. First, Kunz and Nincic attempt to interpret the meaning of the 
text from an analysis of the words alone, attempting to divine a single clear and un- 
ambiguous meaning, and Kunz, in addition, "casually de-emphasize [s]" the prepara- 
tory work on the document. The second major flaw in their argument is that they 
seriously underestimate the potentialities of modern military weapons systems and 
the contemporary techniques of non-military coercion. 34 

With respect to arguments that allowing a State to respond in an anticipatory 
manner would vest too much discretion in individual States, McDougal and 
Feliciano point out that the claim to the right of self-defense "remains subject to 
the reviewing authority of the organized community." 35 

One of the more cogent criticisms of the conclusions reached by the literalists 
was made by Professor David Linnan in a recent article in which he applied the 
interpretive principles of the Vienna Convention on the Law of Treaties to an 
interpretation of Article 51 of the Charter. He states: 

Under the Vienna Convention, the textual exegesis or ordinary meaning approach 
enjoys primacy in the absence of inherent ambiguity or manifestly absurd result. 
Publicists employing the ordinary meaning approach, but dismissing Article 51's 
inherent right-droit naturel language as mere infelicitous drafting (viewing the 
natural law approach as generally discredited) violate its most basic 
canon. . . . [U]nder an ordinary meaning approach the use of the natural law 
terminology indicates the adoption by reference of its scheme of self-defense 
(without reaching or expressing an opinion on the validity of the natural law 
approach itself, which is a national view of international law not shared by all 
states). Regarding the scheme of self-defense adopted, U.S. views expressed in the 
notes accompanying the Kellogg-Briand Pact are representative. 36 

Professor Linnan goes on to argue that if, however, the use of the term "in- 
herent right" creates an ambiguity, it brings into play the secondary rule of inter- 
pretation, which authorizes resort to supplementary materials under Article 32 
of the Vienna Convention, at which point the "legislative history" of Article 51 
comes to the fore. As he and many other publicists have pointed out, 37 the draft- 
ing history shows clearly that Article 51 was inserted to clarify the point that the 
new Security Council system would not displace contemporaneous efforts in- 
volving the creation of regional security systems. 38 

But international law is not just a creature of treaty text. It is at least equally a 
product of State practice. Analyzing State practice since the adoption of the 

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Charter, Sir Robert Jennings and Sir Arthur Watts, while cautioning that antici- 
patory self-defense should be regarded as unlawful under most circumstances, 
state that: 

[I]t is not necessarily unlawful in all circumstances, the matter depending on the 
facts of the situation including in particular the seriousness of the threat and the 
degree to which pre-emptive action is really necessary and is the only way of 
avoiding that serious threat. 39 

Proceeding on that basis, they conclude: 

The development of the law, particularly in the light of more recent state 
practice, in the 150 years since the Caroline incident, suggests that action, even if 
it involves the use of armed force and the violation of another state's territory, 
can be justified as self-defence under international law where (a) an armed attack 
is launched or is immediately threatened, against a state's territory or forces (and 
probably its nationals); (b) there is an urgent necessity for defensive action 
against that attack; (c) there is no practicable alternative to action in 
self-defence . . .; (d) the action taken by way of self-defence is limited to what is 
necessary to stop or prevent the infringement, i.e., to the needs of defence; and 
(e) in the case of collective self-defence, the victim of an armed attack has 
requested assistance. 40 

The severe restraints that Jennings and Watts would apply to the exercise of 
"anticipatory" self-defense reflect their concern that the right could be abused 
with enormously serious consequences. Professor Rosalyn Higgins has ex- 
pressed the same concern. She has contrasted two cases in which Israel asserted 
this doctrine to justify resort to pre-emptive strikes to illustrate her view of 
what may or may not constitute a justified anticipatory exercise of the right of 
self-defense. The first was the Six Days War of 1967. Recall the events leading 
up to Israel's pre-emptory attack: President Nasser summarily ejected the UN 
Emergency Force from Sinai and the Gaza strip; he closed the Straits of Tiran, 
a vital seaway link for Israel to the outside world; both Syria and Egypt massed 
troops on Israel's border; and Syria and Egypt unleashed a barrage of bellicose 
statements. As Professor Higgins points out, neither the UN Security Council 
nor the UN General Assembly condemned Israel's action. On the contrary, 
there was a general feeling, "certainly shared by the Western states, that taken 
in context, this was a lawful use of anticipatory self-defence." 41 The second 
case was that of the Israeli air strike against the Iraqi nuclear reactor in 1981. 

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Horace B. Robertson , Jr. 



There, the Security Council, with the concurrence of the United States and 
the Common Market's "Group of Ten," "strongly condemn [ed]" Israel's ac- 
tions. 42 Not only was the building of a nuclear reactor not a use of force; the 
timing of the strike lacked the temporal element of urgency required by the 
Caroline criteria. 43 

Professor Cassese, in the same collection of essays, agrees with Professor Hig- 
gins and, in addition, appears to go further by relaxing somewhat the rigorous 
criteria of the Caroline case. 

One might perhaps draw the conclusion that consensus is now emerging that 
under Art. 51 anticipatory self-defence is allowed, but on the strict conditions that 
(i) solid and consistent evidence exists that another country is about to engage on a 
large-scale armed attack jeopardizing the very life of the target State and (ii) no 
peaceful means of preventing such attack are available either because they would 
certainly prove useless to the specific circumstances, or for lack of time to resort to 
them, or because they have been exhausted. 44 

One of the most vocal critics of the strict interpretation theory has been the 
late Professor McDougal. He urged that in the age of the ballistic missile, to post- 
pone action in self-defense until after the "last irrevocable act" reduces the right 
of self-defense to a right of retaliatory response. 

It is precisely this probable effect that gives to the narrowly restrictive 
construction of Article 51, when appraised for future application, a strong air of 
romanticism. 45 

Professor Schachter has written on the subject of self-defense on several occa- 
sions. While his writings reflect a profound commitment to the principles of Ar- 
ticle 2(4) of the UN Charter, he nevertheless concludes that Article 51 cannot be 
so narrowly construed as to require a State to forego the right to respond when, 
based on persuasive evidence, an attack appears imminent. As he stated most elo- 
quently in 1986: 

On the level of principle, it makes sense to support a norm that opposes the 
preemptive resort to force but acknowledges its necessity when an attack is so 
immediate and massive as to make it absurd to demand that the target state await 
the actual attack before taking defensive action. Webster's statement in the 
Caroline case is probably the only acceptable formulation at the present time to 
meet this situation. 46 



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Self-Defense against Computer Network Attack 



Finally, one must consider the judgment of the International Court of Jus- 
tice in the Nicaragua case, as well as Judge Schwebel's dissenting opinion. In the 
jurisdictional phase of the case, the United States had argued that its multilat- 
eral treaty reservation divested the court of jurisdiction since the customary 
law of self-defense had been "subsumed" or "supervened" by treaty law, that 
is, Article 51 of the Charter. At that stage, the Court, in refusing to dismiss the 
case, stated: 

The fact that the above-mentioned principles [including inter alia the principle of 
self-defense] . . . have been codified or embodied in multilateral conventions does 
not mean that they cease to exist and to apply as principles of customary law, even 
as regards countries that are parties to such conventions. 47 

During the Merits stage, the Court further concluded that even if the customary 
law and treaty principles were identical in content, the customary-law rule may 
apply separately and independently. 48 Since, however, the parties to the case 
placed their reliance as to the applicability of the right of self-defense only on the 
case of an armed attack which had already occurred, the issue of the lawfulness of 
an armed response to an imminent threat of attack was not raised nor addressed 
by the majority opinion. 49 

Judge Schwebel, in his dissent, while also acknowledging that the issue was 
not before the Court, and while recognizing that "the issue is controversial and 
open to more than one substantial view," opined, ex abundi cautela, that he dis- 
agreed with a construction of Article 51 as if it read, "Nothing in the present 
Charter shall impair the inherent right of individual or collective self-defence if, 
and only if, an armed attack occurs." 50 

While the foregoing discussion admittedly constitutes only a partial review 
of the many scholarly writings on the use of force and the right of self-defense, 
I believe it constitutes a fair representation of the various positions taken by the 
leading commentators who have addressed this issue. From this review it 
would appear safe to conclude that there is a deep division between those who 
argue for a literal interpretation of Article 51 and those who argue that such an 
interpretation is inconsistent with the true meaning of the Article, particularly 
in the post-nuclear age. To conclude that one view or the other is the "pre- 
vailing" view, as Randelzhofer has done, is, I believe, too strong a conclusion 
to draw given the number and eminence of the scholars that are represented in 
the opposing camp. 

In view of the foregoing, I do not consider it to be unreasonable that the 
United States takes the position that anticipatory self-defense against an 

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Horace B. Robertson , Jr. 



imminent attack is permitted under Article 51 . This position is articulated in the 
relevant military operational manuals and in the Joint Chiefs of Staff (JCS) 
Standing Rules of Engagement. The Navy's Manual, for example, provides as 
follows: 

Anticipatory Serf-Defense. Included within the inherent right of self-defense is 
the right of a nation (and its armed forces) to protect itself from imminent attack. 
International law recognizes that it would be contrary to the purposes of the 
United Nations Charter if a threatened nation were required to absorb an 
aggressor's initial and potentially crippling first strike before taking those military 
measures necessary to thwart an imminent attack. Anticipatory self-defense involves 
the use of armed force where attack is imminent and no reasonable choice of peaceful means is 
available. 51 

The JCS Standing Rules of Engagement authorize the exercise of the right 
of anticipatory self-defense against forces displaying "hostile intent," which is 
defined, inter alia, as follows: 

Hostile Intent. The threat of imminent use of force against the United States, 
US forces, and in some circumstances, US nationals, their property, US 
commercial assets, and/or other designated non-US forces, foreign nationals and 
their property. 52 

Having concluded that it would not be unreasonable for a State to take the 
position that anticipatory self-defense against an imminent armed attack is law- 
ful, and having found that the United States has adopted this position, the ques- 
tion remains as to what are the criteria for determining when an attack is 
"imminent." The classic formulation is US Secretary of State Daniel Webster's 
dictum that an armed response is lawful when the necessity of action is "instant, 
overwhelming, and leaving no choice of means, and no moment for delibera- 
tion." 53 This is the test adopted by many eminent scholars and has been repeated 
often in legal and diplomatic arguments. It was adopted in the US Navy's opera- 
tional manual prior to its current iteration. 54 A number of scholars have con- 
cluded, however, that this articulation is much too restrictive in the present age, 
particularly in the light of the possibility of devastating nuclear attack. 
McDougal and Feliciano have stated, for example, that: 

[T]he standard of required necessity has been habitually cast in language so 
abstractly restrictive as almost, if read literally, to impose paralysis. 55 

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Self-Defense against Computer Network Attack 



In their own extensive analysis of the required degree of necessity, McDougal 
and Feliciano are unable to provide tests that are less abstract, finally concluding 
that the requirement of necessity "can only be subjected to that most 
comprehensive and fundamental test of all law, reasonableness in particular 
context." 56 Analyzing the particular context of the Cuban Missile Crisis of 1962, 
Professor McDougal concluded that the US quarantine of Cuba was a lawful 
application of the doctrine of self-defense. 57 Central to his analysis was that the 
United States' action was an exercise of "initial discretion," which was then 
backed up by mustering the support of the members of the Organization of 
American States and reporting its action to the Security Council. 58 

Sally and Thomas Mallison have analyzed the criteria for the lawful employ- 
ment of self-defense against an imminent armed attack in several of their writ- 
ings, most recently in volume 64 of the Naval War College's "Blue Book" series 
(1991), where they, like McDougal and Feliciano, concluded that the Webster 
formulation was too restrictive, "since a credible threat may be imminent with- 
out being 'instant' and more than a 'moment for deliberation' is required to 
make a lawful choice of means." 59 Like McDougal and Feliciano, they also as- 
sert that whether an anticipatory resort to armed force in self-defense is lawful 
can only be determined in the context of the facts of the specific case. 60 They 
emphasize that where anticipatory self-defense is claimed, the criteria for law- 
fulness must be applied with greater stringency than when an actual attack has 
occurred. 61 

Computer Network Attacks as "Armed Attacks'' 

It is important that what is under discussion here is not what may be lawful in 
an ongoing armed conflict (jus in bello) but rather actions by a hostile individual, 
group, or State against another State while the target State and the State of origin 
of the actions are not yet engaged in armed conflict (jus ad bellum). In an ongoing 
armed conflict (war), it is unquestionably legitimate for a State to attack its en- 
emy's military telecommunications infrastructure, including military computer 
networks. 62 Attacks on other telecommunications and network facilities which 
serve both military and civilian clientele may also be legitimate military objec- 
tives, provided that the international humanitarian law of armed conflict is ob- 
served with respect to proportionality, including limiting collateral damage. 63 It 
is a matter of indifference whether the mode of attack is kinetic or electronic, al- 
though the former may be more objectionable since it is more destructive and 
may cause more long-lasting effects. 

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Horace B. Robertson , Jr. 



In examining whether a computer network "attack" may constitute an 
"armed attack," Article 51 cannot be construed in isolation but rather must be 
read in the context of other articles of the Charter, particularly Articles 2(4), 39, 
41 and 42. Article 2(4) provides: 

All Members shall refrain in their international relations from the threat or use of 
force against the territorial integrity or political independence of any state, or in 
any other manner inconsistent with the Purposes of the United Nations. 

Article 39 empowers the Security Council to determine the existence of "any 
threat to the peace, breach of the peace, or act of aggression" and to make 
recommendations or decide on "measures" to be employed under Article 41 or 
Article 42. Article 41 provides a non-exhaustive list of measures "not involving 
the use of armed force" which the Security Council may take including 
"complete or partial interruption of . . . telegraphic, radio, and other means of 
communication." Article 42, in turn, provides for actions "by air, sea, or land 
forces" when the measures provided for in Article 41 are inadequate. Since the 
actions in Article 41 are described as "measures not involving the use of armed 
force," 64 whereas those in Article 42 involve the use of armed forces, it would 
appear that, at least as an initial presumption, a computer network attack would 
not be regarded as an "armed attack." Giving effect to such an initial 
presumption, however, ignores the significance of the drastic consequences that 
such an attack can have on the social, economic and military structure of a State. 
As will be discussed infra, whether an attack is to be considered as an armed attack 
depends on the consequences of the attack rather than the modality. 

The various terms used in the Charter, including the Preamble — "war" (Pre- 
amble), "armed force" (Preamble), "acts of aggression" (Article 1), "threat or 
use of force" (Article 2(4)), "act of aggression (Article 39), and "armed attack" 
(Article 51) — differ in scope and content. Though related in content "they differ 
considerably in their meaning." 65 None of them is further explained in the 
Charter. 

This lack of definition has led to several attempts, primarily by the General 
Assembly, to give further content to the terms, particularly "act of aggression." 
Article 3 of the 1974 General Assembly's "Definition of Aggression" Resolution 
provides the following non-exhaustive list of acts which qualify as acts of 
aggression: 

(a) The invasion or attack by the armed forces of a State of the territory of another 
State, or any military occupation, however temporary, resulting from such 

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Self-Defense against Computer Network Attack 



invasion or attack, or any annexation by the use of force of the territory of another 
State or part thereof; 

(b) Bombardment by the armed forces of a State against the territory of another 
State or the use of any weapons by a State against the territory of another State; 

(c) The blockade of the ports or coasts of a State by the armed forces of another State; 

(d) An attack by the armed forces of a State of the land, sea or air forces, marine and 
air fleets of another State; 

(e) The use of armed forces of one State, which are within the territory of another 
State with the agreement of the receiving State, in contravention of the 
conditions provided for in the agreement or any extension of their presence in 
such territory beyond the termination of the agreement; 

(f) The action of a State in allowing its territory, which it has placed at the disposal 
of another State, to be used by that other State for perpetrating an act of aggression 
against a third State; 

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or 
mercenaries, which carry out acts of armed force against another State of such 
gravity as to amount to the acts listed above, or its substantial involvement 
therein. 66 

While the term "act of aggression" is broader than "armed attack," it is appar- 
ent that most of the acts listed in the General Assembly's resolution would also 
constitute an "armed attack" and would, if of sufficient scale and effect, invoke 
the victim's right to respond under its right of self-defense. 

As several recent articles and monographs have revealed, analyzing the novel 
and still-developing concept of computer network attack under either the cus- 
tomary law of self-defense or Article 51 of the Charter presents both theoretical 
and practical difficulties. 67 The principal difficulty flows from the fact that both 
traditionally and under the Charter, the discussion and codification of what con- 
stitutes an act of aggression or an armed attack generally involve the use of 
armed force — either in the form of employment of military weapons or hos- 
tile acts by members of the armed forces. It is now clear that the "armed 
force" involved does not have to be a part of the organized military forces of a 
State. As indicated above, the General Assembly's "Definition of Aggression" 

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Horace B. Robertson , Jr. 



Resolution, after listing certain acts involving the "armed forces of a State," also 
includes, as an act of aggression, the sending by or on behalf of a State of "armed 
bands, groups, irregulars or mercenaries, which carry out acts of armed force 
against another State" or the substantial involvement of a State in such actions 
provided they reach a certain level of gravity. 68 The judgment of the Interna- 
tional Court of Justice in the Nicaragua case likewise held that the "arming and 
training of the contras [by the United States] can certainly be said to involve the 
threat or use of force against Nicaragua." 69 It also held, however, that the "mere 
supply of funds . . . does not in itself amount to a use of force." 70 

Those publicists who have grappled with the problem of determining when a 
computer network attack constitutes an armed attack, have two possible ave- 
nues of approach— either the instrumentality or the consequences test. Nearly 40 
years ago, Professor McDougal and Mr. Feliciano, though not visualizing cyber 
warfare, were critical of focusing on the instrumentality as the "precipitating 
event" for lawful self-defense, stating that to do so 

is in effect to suppose that in no possible context can applications of nonrnilitary types 
of coercion (where armed force is kept to a background role) take on efficacy, 
intensity, and proportions comparable to those of an "armed attack" and thus present 
an analogous condition of necessity. Apart from the extreme difficulty of establishing 
realistic factual bases for that supposition, the conclusion places too great a strain upon 
the single secondary factor of modality— military violence. 71 

Michael Schmitt points out, however, that: 

At least since the promulgation of the Charter, [the] use of force paradigm has 
been instrument-based; determination of whether or not the standard has been 
breached depends on the type of the coercive instrument— diplomatic, economic, 
or military— selected to attain the national objectives in question. The first two 
type of instruments might rise to the level of intervention, but they do not engage 
the normatively more flagrant act of using force. 72 

While admitting that an instrument-based approach provides a relatively 
easily-applied test for calculating lawfulness of an act of intervention, 73 he 
ultimately concludes that it does not provide a useful test for computer 
network attack. 

Computer network attack challenges the prevailing paradigm, for its 
consequences cannot easily be placed in a particular area along the community 

135 



Self-Defense against Computer Network Attack 



values threat continuum. The dilemma lies in the fact that CNA spans the 
spectrum of consequentiality. Its effects freely range from mere inconvenience 
(e.g., shutting an academic network temporarily) to physical destruction (e.g., as 
in creating a hammering phenomenon in oil pipelines so as to cause them to 
burst) to death (e.g., shutting down power to a hospital with no back-up 
generators). It can affect economic, social, mental, and physical well-being, 
either directly or indirectly, and its potential scope grows almost daily, being 
capable of targeting everything from individual persons or objects to entire 
societies. 74 

Professor Schmitt recognizes, however, the weakness of a system of analysis 
which attempts to apply a system developed to regulate kinetic activities to ac- 
count for non-kinetically based harm. 75 He calls for a new normative architec- 
ture. 76 Recognizing also, however, that there is no current consensus as to the 
need for developing such an architecture, he articulates an "appropriate norma- 
tive framework" 77 under current international law as framed within the UN 
Charter, that relies on the "consequences" theory. 

To constitute an armed attack, the CNA must be intended to directly cause 
physical damage to tangible objects or injury to human beings. . . . States, acting 
individually or collectively, may respond to a CNA amounting to armed attack 
with the use of force pursuant to Article 51 and the inherent right of 
self-defense. 78 

The Institute for National Strategic Studies of the National Defense Univer- 
sity has also adopted a "consequences" test as to whether a CNA rises to the level 
of an armed attack, stating: 

[I]t appears likely that an "armed attack" would include some level of actual or 
potential physical destruction, combined with some level of intrusion into its 
target's borders, or violation of its sovereign rights. . . . [AJttacks that are 
sufficiently destructive may qualify as "armed attacks," no matter what their level 
of intrusion, and vice versa. 79 

Likewise, Professor Dinstein adopts a consequences test. He offers as examples of 
CNAs that would constitute armed attacks the following: 

Fatalities caused by loss of computer-controlled life-support systems; an extensive 
power grid outage (electricity blackout) creating considerable deleterious 

136 



Horace B. Robertson , Jr. 



repercussions; a shutdown of computers controlling waterworks and dams, 
generating thereby floods of inhabited areas; deadly crashes deliberately 
engineered (e.g., through misinformation fed into aircraft computers), etc. The 
most egregious case is the wanton instigation of a core-meltdown of a reactor in a 
nuclear plant, leading to the release of radioactive materials that can cause 
countless casualties if the neighboring areas are densely populated. In all these 
cases, the CNA would be deemed an armed attack. 80 

Walter Gary Sharp, Sr., would lower the threshold substantially. 

[T]he mere penetration by a state into sensitive computer systems such as early 
warning or command and control systems, missile defense computer systems, and 
other computers that maintain the safety and reliability of a nuclear stockpile, 
should by their very nature be presumed a demonstration of hostile intent. 
Individually, these computer systems are so important to a state's ability to defend 
itself that espionage into any one of them should be presumed to demonstrate 
hostile intent. 81 

It is to be recalled that under the JCS Standing Rules of Engagement, 
demonstration of a hostile intent is the determinant for permitting an armed 
response to an imminent armed attack. 82 Invoking such a low threshold for 
triggering the right to respond by armed force in self-defense seems to be 
establishing a dangerous standard, especially when it is often difficult to 
determine whether a computer network attack has occurred at all. In some 
instances, malfunctions which appear at first to be the result of computer 
network attack have been determined, after more thorough investigation, to be 
the result of faulty software or operator error. 83 

If one agrees that computer network attacks of some degree of severity and 
under some circumstances may constitute "armed attacks," then one must ap- 
ply some criteria for determining when such attacks cross the threshold from 
interventions that do not warrant responses under the right of self-defense to 
those that do. As has been mentioned, the closest the UN Charter itself comes 
to describing anything remotely resembling CNA is in Article 41, where it 
lists "complete or partial interruption ... of telegraphic, radio, and other 
means of communication" as a measure "not involving the use of armed 
force" which the Security Council may take against threats to the peace, 
breaches of peace, or acts of aggression. 84 Presumptively, computer networks 
would fall under a broad definition of "telegraphic, radio, and other means of 
communication," but in today's environment of almost total dependence on 

137 



Self-Defense against Computer Network Attack 



the proper functioning of computer networks for control of vital societal 
functions, as well as critical national-security systems, the "complete or partial 
interruption" of such systems would have a much more drastic effect than 
anything that could have been envisaged by the framers of the Charter in 
1945. Article 41, therefore, cannot be said to require the categorization of 
computer network attacks as actions "not involving the use of armed force." 
As Professor Schmitt has suggested, it would be desirable for a normative 
architecture specifically tailored to CNA to emerge. For the present, how- 
ever, until a consensus develops for the need for a new normative architec- 
ture, it would appear that the most rational and practical test of whether a 
computer attack can be the precipitating event for the exercise of lawful 
self-defense is whether the consequences are major damage to or destruction 
of vital military or civilian infrastructures or the loss of human life. 

Anticipatory Self-Defense against Computer Network Attack 

As discussed earlier, there is substantial legal support for the proposition that 
where there is persuasive evidence that an armed attack is imminent, the po- 
tential victim State is not required to stand idly by until the actual attack has 
occurred — it may respond with proportional force to ward off the attack. The 
difficulty with the application of this principle is in determining that in fact an at- 
tack is imminent. In the case of an attack by kinetic means, there are usually (but 
certainly not always) intimations of an impending attack. Some may be ambigu- 
ous, such as a step-up in propaganda or bellicose statements; others may carry a 
clearer threat — movement of troops to the border, mobilization of forces, 
increased aerial and electronic surveillance, deployment of naval and air forces, 
and clandestine infiltration of intelligence agents. While a computer network at- 
tack may also be preceded by acts that suggest an attack is imminent (or it may it- 
self be a part of the pre-attack build-up for an attack by kinetic means), the 
capability of an attacker to cause almost instantaneous harm suggests that the first 
notice that a victim State may have that a computer network attack is underway 
is to experience the harmful effects themselves. If the consequence of the CNA 
is serious harm to vital infrastructure or loss of human life, then under the princi- 
ples previously discussed, a proportional response is lawful. But difficult ques- 
tions remain. Response against whom? Can the attacker be identified? The 
originator of the attack may have sent his electronic attack through multiple 
switches and servers in several different countries. Is the attacker acting on behalf 
of a foreign government, or is he merely a teen-age "hacker" engaged in what is 
to him a prank? 85 If the hacker is not a direct agent of a foreign government, is 

138 



Horace B. Robertson , Jr. 



the foreign government aware of his actions and impliedly consenting to them? 
The permutations and combinations of situations under which attacks may oc- 
cur number in the millions. Professor Schmitt has reported that today over 120 
countries are in the process of establishing information warfare competence 86 
and by the year 2002 some "nineteen million individuals will have the 
know-how to launch cyber attacks." 87 

Obviously, not every probing of a presumably secure network, whether 
one controlling vital civilian infrastructure or a military network controlling 
critical defense functions, such as air defense, atomic weapons, satellite com- 
munications, or intelligence gathering, can be considered as a prelude to a 
full-scale network attack. Professor Schmitt has reported that the Defense 
Information Systems Agency identified 53 attacks on defense systems in 
1992. 88 By 1995 the number had increased to 559 and was expected to reach 
14,000 in 1999. 89 Figures supplied by the Defense Information Systems 
Agency reports are even more unsettling. That agency reported that the De- 
fense Department may have experienced as many as 250,000 attacks in 
1 994. 90 Although each of these "attacks" required investigation and appropri- 
ate action, none of them presumably were of sufficient gravity either to indi- 
cate that they were themselves an "armed attack" that would have authorized 
a resort to armed force in response nor were they regarded as indicators that 
such an armed attack was imminent. 

It would seem, then, that the most likely application of the doctrine of an- 
ticipatory self-defense to computer network attacks would be in the case of 
such attacks that in and of themselves do not constitute an armed attack but 
rather are evaluated as precursors of an armed attack by kinetic means and/or 
further, more severe cyber attacks. In modern warfare, the electronic battle- 
field will play a crucial role, and any steps that a prospective attacker can take to 
neutralize or destroy its enemy's electronic command and control, intelli- 
gence, communications, or weapons-control networks prior to a kinetic attack 
would gain enormous advantage. While these preliminary CNAs may not 
themselves rise to the level of armed attack, they may, if combined with other 
evidence of an impending attack, be sufficient to authorize armed measures of 
self-defense — not against the CNAs themselves, but rather as an exercise of the 
right of anticipatory self-defense against the impending kinetic or more serious 
cyber attack. 

Professor Schmitt, who also visualizes the most likely scenario to be the use 
of CNA to soften up the battlespace, 91 proposes a three-prong test for deter- 
mining when a State may respond to a CNA that itself does not constitute an 
armed attack. 



139 



Self-Defense against Computer Network Attack 



1 . The CNA is part of an overall operation culminating in armed attack; 

2. The CNA is an irrevocable step in an imminent (near-term) and probably 
unavoidable attack; and 

3. The defender is reacting in advance of the attack itself during the last possible 
window of opportunity available to effectively counter the attack. 92 

This formulation appears to be an application of Secretary Webster's dictum 
in the Caroline case, adapted to computer network attack. As we have seen, the 
Caroline standard has been found by many publicists to be too narrowly drawn to 
apply in all circumstances. "The last possible window" may be too late to avoid 
catastrophic results. The problem does not lend itself to a specific formula. I sug- 
gest that whatever the formula used, in the final analysis, the decision maker 
must apply "that most comprehensive and fundamental test of all law, reason- 
ableness in particular context." 93 

Concluding Remarks 

In this chapter I have attempted to defend the proposition that a State's right 
to exercise its "inherent" right of self-defense by armed force is not limited to the 
situation in which an attack has actually occurred, but may also apply when a 
State has persuasive evidence that such an attack is imminent (anticipatory 
self-defense). The State exercising the right of anticipatory self-defense, however, 
bears a heavy burden of proof that the evidence upon which it acted was indeed 
persuasive and must withstand ex post facto examination by the international 
community, primarily through the Security Council. I have also attempted to 
demonstrate that the term "armed attack" may also include attacks upon com- 
puter networks solely by electronic means if the consequences of such attacks in- 
clude either substantial harm to vital civil or military networks, or loss of human 
life, or both. Although the first of these propositions is admittedly controversial, 
and some have labeled it a minority view, I believe that there is distinguished 
scholarly support for that position, as well as substantial support in State practice. 
The adoption of this position by the United States, as reflected in its military 7 
manuals and Standing Rules of Engagement is therefore justifiable. As to the 
second proposition, that is, that the test of whether an action constitutes an 
armed attack is the consequence of the attack, there does not seem to be any 
other choice, since an instrumentality-based criterion is wholly impractical in 
view of the capability of an innocuous instrument — the computer — to become 

140 



Horace B. Robertson , Jr. 



2l lethal weapon in the hands of a skilled and persistent "hacker" determined to 
invade and attack another's computer network. 

When I attempt to apply the doctrine of anticipatory self-defense to com- 
puter network attack, I find myself in waters difficult to navigate. The most 
likely scenario for CNA is that it will occur suddenly, without warning. It also 
seems likely that a true hostile CNA reaching the level of an "armed attack" 
will not be an isolated incident, but rather will occur as part of the preliminary 
softening-up of the battlespace preceding an attack by kinetic weapons or a 
more serious cyber attack. Professor Schmitt apparently visualizes this same sce- 
nario since he shifts the focus of his section on anticipatory self-defense to use of 
"computer network attack operations executed to prepare the battlespace." 94 
Under these circumstances, it becomes even more important for a State facing 
what may appear to be an imminent CNA carefully to utilize all its resources in 
its analysis of all the surrounding events, political and military, to aid in its deter- 
mination of whether an armed response may be made under the right of self-de- 
fense. Only in this way can it meet its heavy burden of establishing the 
justification for initiating the first resort to the use of armed force. 

Notes 

1. US Naval War College Symposium, Computer Network "Attack" and International Law, 
convened at the Naval War College, Newport, Rhode Island, June 22—25, 1999. 

2. Vice Admiral A. K. Cebrowski, USN, CNE and CNA in the Network Centric Battlespace: 
Challenges for Operators and Lawyers, Welcoming Address to the Conferees, June 22, 1999. 

3. Michael E. Ruane, New Computer Technology Makes Hacking A Snap, WASHINGTON POST, 
March 10, 1999, at 1. 

4. Remarks of Dr. Mark Gembicki, Chief Technical Officer ofWarRoom Research, Inc., to 
the Symposium, June 22, 1999. 

5. Yoram Dinstein, Computer Network Attacks and Self-Defense, published in this volume. 

6. UN CHARTER, art. 2, para. 4. 

7. Id., art. 51. As we shall discuss later, the meaning of the term "armed attack" is not identical 
with the term "threat or use of force" used in Art. 2, para. 4. 

8. Dinstein, supra note 5. 

9. Id. Professor Dinstein has elaborated this doctrine more fully in his book, WAR, 

Aggression and Self-Defence 172-173 (3d ed. 2001) [hereinafter Dinstein]. 
10. Dinstein, supra note 9, at 172. 
1 1 .Josef L. Kunz, Individual and Collective Defense in Article 51 of the Charter of the United Nations, 

41 American Journal of International Law, 872, 878 (1947). It is interesting to note 

that Professor Kunz's literal interpretation of Article 51 leads him to conclude that the language of 
the article, which codifies the one requirement of necessity ("armed attack") frees the defending 
State from the requirements of reasonableness and proportionality, which, along with 
"immediacy," have traditionally been regarded as requirements for the exercise of the right in both 
domestic and international law. He even suggests that a minor border incident would justify a 
full-scale war. Id. at 876, 878. 



141 



Self-Defense against Computer Network Attack 



12. Djura Nincic, Reply, in International Law Association Committee on the Charter of the 
United Nations, Report on Some Aspects of the Principle of Self-Defense in the Charter of the 
United Nations and The Topics Covered by the Dubrovnik Resolution 68 (Georg 
Schwarzenberger ed., 1958) (emphasis in original). 

13. Hans Kelsen, The Law of the United Nations 797 (1950) ("It is of importance to 

note that Article 51 does not use the term 'aggression' but the much narrower concept of 'armed 
attack,' which means that a merely 'imminent attack' or act of aggression which has not the 
character of an attack involving the use of armed force does not justify resort to force as an exercise 
of the right established by Article 51" (emphasis supplied). Kelsen reiterates this view in the 
supplement to the 4th printing of his book in 1956. It should also be noted that Kelsen states that 
the inclusion of the word "inherent" in Article 51 is a superfluity. "The effect of Article 51 would 
not change if the term 'inherent' were dropped." Id. at 792). 

14. LOUIS HENKIN, HOW NATIONS BEHAVE 141-44 (2d ed. 1979) ("The fair reading of 
Article 51 permits unilateral use of force only in a very narrow and clear circumstance, in 
self-defense if an armed attack occurs." Id. at 141). 

15. IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 264-80 
(1963) ("It can only be concluded that the view that Article 51 does not permit anticipatory action 
is correct and that the arguments to the contrary are either unconvincing or based on inconclusive 
pieces of evidence." Id. at 278). 

16. Hersch Lauterpacht, 2 Oppenheim's International Law 156 (7 th ed. 1952) 
("[T]he Charter confines the right of armed self-defense to the case of an armed attack as 
distinguished from anticipated attack.") It should be noted that in the Jennings and Watts 9 tn 
edition of this authoritative treatise, the authors partially disavow the statement in the earlier 
version, stating that "while anticipatory action in self-defence is normally unlawful, it is not 
necessarily unlawful in all circumstances, the matter depending on the facts of the situation 
including in particular the seriousness of the threat and the degree to which pre-emptive action is 
really necessary and is the only way of avoiding that serious threat." ROBERT JENNINGS AND 

Arthur Watts, 1 Oppenheim's International Law 417 (1992). For further elaboration 

of the Jennings and Watts views, see infra notes 39 and 40 and accompanying text. 

17. Andrew Martin, Collective Security 169 (UNESCO Paris, 1952) ("Under the 

Charter they no longer have this latitude [to respond to an apprehended attack] : the attack must be 
actual and armed.") 

18. Robert Tucker, The Interpretation of War Under Present International Law, 4 

International Law Quarterly 11, 29-30 (1951). 

19. The Charter of the United Nations (Bruno Simma ed., 1994). 

20. Albrecht Randelzhofer, Article 51, in id. at 661, 666. 

21. Id. at 675. 

22. Id. at 676 (emphasis supplied). 

23. Id. It should be noted that Professor Randelzhofer rejects the conclusion of the 
International Court of Justice in the Nicaragua case that the customary law of self-defense 
corresponds "almost completely to the right of self-defence under Art. 51 of the Charter," but 
regards this as of little moment, since, in his view the customary law could apply only to the tew 
non-UN members. "As regards UN Members, it stands that Art. 5 1 , including its restriction to the 
armed attack, supersedes and replaces the traditional right to self-defence." Id. at 678. 

24. DlNSTEIN, supra note 9, at 168. 

25. Id. at 160, quoting, in part, E.Jimenez de Arechaga, International Law in the Past Tliird of a 
Century, 159 I^ECUEIL DES COURS DE L'ACADEMIE DU DROIT INTERNATIONAL 1 at 96 
(1978) [other citations omitted]. 

26. Id. at 163. 



142 



Horace B. Robertson , Jr. 



27. United States Identical Notes, reproduced in 22 AMERICAN JOURNAL OF 
INTERNATIONAL LAW (Supp.) 109 (1928). 

28. DlNSTEIN, supra note 9, at 164, quoting in part from A. S. HERSHEY, THE ESSENTIALS OF 
INTERNATIONAL PUBLIC LAW 349 (1912) [other footnotes omitted]. 

29. Id. at 172. 

30. Id. Compare Professor Dinstein's theory with that suggested by Professor M. Nagendra 
Singh more than three decades earlier. Professor Singh also insisted that the actual occurrence of an 
armed attack was a condition precedent to the exercise of self-defense, but he too would authorize 
resort to self-help when the potential aggressor "has taken the last proximate act on its side which is 
necessary for the commission of the offence of an armed attack." M. Nagendra Singh, The Right of 
Self-Defence in Relation to the Use of Nuclear Weapons, 5 INDIAN YEARBOOK OF INTERNATIONAL 
LAW 3, 25 (1956). 

31. SeeD. W. BOWETT, SELF-DEFENSE AND INTERNATIONAL LAW 2-3 (1958), and sources 
cited therein. 

32. Randelzhofer, supra note 20, at 675. 

33. C. Humphrey M. Waldock, The Regulation of the Use of Force by Individual States in 
International Law, ACADEMIE DE DROIT INTERNATIONAL, RECUEIL DE COURS 455, 498 
(1952) (footnote omitted). 

34. Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World 
Order 234-41 (1961). 

35. Id. at 237. 

36. David Linnan, Self-Defense, Necessity and U.N. Collective Security: United States and Other 
Views," 1 Duke Journal of Comparative & International Law 57, 81 (1991). 

37. See, in particular, MCDOUGAL & FELICIANO, supra note 34, at 235; O. Schachter, The 
Right of States To Use Armed Force, 82 MICHIGAN LAW PvEVIEW 1620, 1633-34 (1982); Waldock, 
supra note 33 at 497. 

38. MCDOUGAL & FELICIANO, supra note 34, and authorities cited therein. 

39. Robert Jennings & Arthur Watts, 1 Oppenheim's International Law 421 
(9 th ed. 1992). 

40. Id. at 422 (emphasis supplied). 

41. Rosalyn Higgins, The Attitude of Western States towards Legal Aspects of the Use of Force, in THE 

Current Legal Regulation of the Use of Force 435, 442-43 (Antonio Cassese ed., 

1986). But in the same volume, see contra, Ian Brownlie, The U.N. Charter and the Use of Force, 
1945-1985," id. at 491 , 498-99. Professor Dinstein, in his analysis of these cases under his doctrine of 
"interceptive self-defense," reaches the same conclusion as Professor Higgins with respect to the two 
Israeli actions. DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE, supra note 9, at 44 and 191 . 

42. U.N. SCOR (2288 th mtg.), U.N. Doc. S/RES/487 (1981), reprinted in 75 AMERICAN 
Journal of International Law 724 (1981). 

43. Higgins, supra note 41, at 443. Other commentators have reached the same conclusion. 
See, e.g., William T. Mallison and Sally V. Mallison, The Israeli Aerial Attack of June 7, 1981, Upon 
the Iraqi Nuclear Reactor: Aggression or Self- Defense?, 115 VANDERBILT JOURNAL OF 
TRANSNATIONAL LAW 417 (1982); DlNSTEIN, supra note 9, at 45 and 169; Antonio D'Amato, 
Israel's Air Strike Upon the Iraqi Reactor, 77 AMERICAN JOURNAL OF INTERNATIONAL LAW 584 

(1983). contra: timothy l. h. mccormack, self-defense in international law: 
The Israeli Raid on the Iraqi Nuclear Reactor 302 (1996). 

44. Antonio Cassese, Return to Westphalia? Considerations on the Gradual Erosion of the Charter 
System, in Cassese, supra note 41, 505, 515-16. 

45. McDougal & Feliciano, supra note 34, at 240. 

46. Oscar Schachter, In Defense of International Rules on the Use of Force, 53 UNIVERSITY OF 

Chicago Law Review 113, 136 (1986). 



143 



Self-Defense against Computer Network Attack 



47. Military and Paramilitary Activities (Nicaragua v. United States) (Jurisdiction), 1984 I.CJ. 
424 (Nov. 26). 

48. Military and Paramilitary Activities (Nicaragua v. United States) (Merits), 1986 I.C.J. 96 
(June 27) [hereinafter Nicaragua case]. 

49. Id. at 103. 

50. Id. at 347, quoting Waldock, supra note 33, at 496-97, and citing BOWETT, McDOUGAL 
& FELICIANO, and SCHACHTER (dissenting opinion of Judge Schwebel). 

51. Department of the Navy, The Commander's Handbook on the Law of Naval Operations 
(NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.1), para. 4.3.2.1 (1995) (emphasis supplied). 
This publication was formerly designated as NWP-9 (Rev. A) [hereinafter cited as NWP 1-14M 
and NWP-9 (Rev. A) respectively]. 

52. Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121. 01 A, Standing Rules of 
Engagement for US Forces, para 5h (2000) [hereinafter JCS SROE]. 

53. Secretary of State Daniel Webster to Mr. Fox, British Minister at Washington, April 24, 
1841, quoted in 2 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 412 (1906). 

54. NWP-9 (Rev. A), para. 4.3.2., supra note 51, which provided that the necessity must be 
"instant, overwhelming, and leaving no reasonable choice of means." 

55. MCDOUGAL & FELICIANO, supra note 34, at 217. 

56. Id. at 218. In the course of their analysis, McDougal and Feliciano conclude that the 
standard of necessity under Article 51 is not less restrictive than the customary-law standard, which 
required a "high degree of necessity — a 'great and immediate' necessity [citing Westlake] , 'direct 
and immediate' [citing Lawrence], 'compelling and instant' [citing Schwarzenberger]," to be 
characterized as "legitimate self-defense." Id. at 231, 232-41 [citations omitted]. 

57. MYRES S. MCDOUGAL, The Soviet-Cuban Quarantine and Self-Defense, 57 AMERICAN 
Journal of International Law 597 (1963). 

58. Id. Professor Brunson MacChesney, in a companion piece, agreed that under the 
conditions that prevailed at the time [nuclear stand-off], "A threatened state must retain some 
discretion in its initial judgment of necessity. Subsequent review will detennine its validity." 
Brunson MacChesney, Some Comments on the 'Quarantine' of Cuba, 57 AMERICAN JOURNAL OF 

International Law 592, 595-96 (1963). 

59. William T. Mallison and Sally Mallison, Naval Targeting: Lawful Objects of Attack, in THE 
LAW OF NAVAL OPERATIONS 241, 263 (Horace B. Robertson, Jr. ed., 1991) (Vol. 64, US Naval 
War College International Law Studies). 

60. Id. 

61 . Id. at 263. The three applicable criteria which they identify are: "(1) A good faith attempt to 
use peaceful procedures; (2) actual necessity (as opposed to a sham or pretense) in the context of 
either an existing armed aggression or a threat of armed aggression against the defending state 
which is both credible and imminent; and (3) proportionality in responding defensive measures." 
Id. at 262. 

62. NWP 1-14M, supra note 51, para. 8.1.1. See, in particular, the notes to para. 8.1.1 in the 
Annotated Supplement to the Manual. ANNOTATED SUPPLEMENT TO THE COMMANDER'S 
HANDBOOK ON THE LAW OF NAVAL OPERATIONS 402-03 (A. Ralph Thomas & James C. 
Duncan eds., 1999) (Vol. 73, US Naval War College International Law Studies). 

63. Id. See, in particular, note 1 1 to para. 8.1.1 for a listing of the so-called "target sets" for the 
offensive air campaign of Operation DESERT STORM against Iraq. 

64. UN Charter, art. 41. 

65. Randelzhofer, supra note 20. 

66. Annex, G.A. RES. 3314 (XXIX) 1974), adopted without a vote on December 14, 1974. 

67. See WALTER GARY SHARP, SR., CYBER SPACE AND THE USE OF FORCE. Ch. (r. 
LAWRENCE T. GREENBERG ET AL., NATIONAL DEFENSE UNIVERSITY INSTITUTE FOR 



144 



Horace B. Robertson , Jr. 



National Strategic Studies, Information Warfare and International Law, ch. 

2; Sean P. Kanuck, Information Warfare: New Challenges for Public International Law, 31 HARVARD 
INTERNATIONAL LAW JOURNAL 272, 288-89 (1996); Michael Schmitt, Computer Network Attack 
and the Use of Force in International Law: Thoughts on a Normative Framework, 37 COLUMBIA 

Journal of Transnational Law 885 (1999). 

68. "Definition of Aggression" Resolution, supra note 66. 

69. Nicaragua case, supra note 48, at 119. 

70. Id. 

71. MCDOUGAL & FELICIANO, supra note 34, at 240-41. 

72. Schmitt, supra note 67, at 909 (emphasis in original). 

73. W. at 911. 

74. Id. at 912. 

75. Id. at 917. 

76. Id. 

11. Id. at 934. 

78. Id. at 935. 

79. LAWRENCE T. GREENBERG ET AL., supra note 67, at 85-87. 

80. Dinstein, Computer Network Attack, supra note 5. 

81. SHARP, supra note 67, at 130. 

82. See JCS SROE, supra note 52. 

83. See examples in the NDU study, supra note 67 at 59—64. 

84. UN CHARTER, art. 41. 

85. In a 1999 article in the Washington Post, Michael Ruane reported that the Internet contains 
a vast number of "easy, ready-to-use computer hacking programs" and that for many kids, 
computer hacking just "seems kind of cool." Ruane, supra note 3, at 1. 

86. Schmitt, supra note 67, at 898, citing Jack L. Brock in Information Security: Computer 
Attacks at Department of Defense Pose Increasing Risks: Testimony Before the Permanent 
Subcomm. On Investigations of the Senate Comm. On Governmental Affairs, 104th Cong. 
(1996) (statement of Jack L. Brock, Director, Defense Information and Financial Management 
Systems Accounting and Information, General Accounting Office). 

87. Schmitt, supra note 67, at 898, citing President's Commission on Critical Infrastructure 
Protection, Critical Foundations: Protecting America's Infrastructures A-48 (Oct. 1997). 

88. Schmitt, supra note 67, at 893. 

89. Id. 

90. Jack L. Brock, Jr., Director, Defense Information and Financial Management Systems, 
GAO, Report to Congressional Requesters (May 22, 1996). The report noted that only about 1 in 
150 attacks is detected and an estimated 65 per cent of the attacks penetrated Defense systems. 
Michael Ruane reports that the Department of Defense undergoes 80 to 100 attacks every day. 
Ruane, supra note 3, at 1. 

91. Schmitt, supra note 67, at 932. 

92. Id. at 933. It should be noted that Professor Schmitt, in his formulation, closely follows the 
nomenclature of Professor Dinstein's "interceptive self-defense" doctrine. Id. at 931—33. 

93. MCDOUGAL & FELICIANO, supra note 34, at 218. 

94. Schmitt, supra note 67, at 932. 



145 




Computer Networks, Proportionality, and 

Military Operations 

James H. Doyle, Jr. 



A 



Computer Network Attack (CNA) has been defined as operations to 
disrupt, deny, degrade, or destroy information resident in computers 
and computer networks, or the computer networks themselves. 1 Whether 
CNA operations are employed in offense or countered in defense, there are 
complex issues of proportionality, just as there are in conventional or kinetic at- 
tack situations. This chapter explores some of the proportionality judgments an 
operational military commander must make. But first, it is useful to consider the 
capabilities, limitations, and vulnerabilities of the computers and computer net- 
works that are revolutionizing high-tech military forces. 

Operational Proliferation 

During the war in Kosovo and Yugoslavia, targets for NATO aircraft were 
developed and reviewed by a computerized network that linked, in real time, 
commanders, planners, intelligence officers, and data specialists on both sides of 
the Atlantic. 2 Simultaneously, Tomahawk cruise missiles launched from surface 
ships and submarines were planned and directed using computer programs. In- 
side an aircraft, tank, or the lifelines of a warship, there are computer chips at the 
heart of every weapons system. For example, to track Chinese M-9 missiles fired 



Computer Networks, Proportionality, and Military Operations 



into the Taiwan Straits in 1996, USS BUNKER HILL (CG-52) loaded a theater 
ballistic missile surveillance and tracking program into the Aegis weapon sys- 
tem. 3 Computer watchstations acquire, process, display, and disseminate data 
from sensors simultaneously. In air defense, the new Cooperative Engagement 
Capability (CEC) uses a network of microprocessors and a data distribution sys- 
tem to share unfiltered radar measurements for composite tracking by dispersed 
aircraft, ships, and ground batteries. 4 Electronic, acoustic, infrared, and optical 
systems have many lines of computer code. Satellites and unmanned aerial vehi- 
cles, carrying sensors, communication, and data transfer links, are controlled by 
computer programs. National satellite imagery, when netted, enables precise 
geo-positioning for accurate targeting of standoff weapons, as well as mission 
planning, battle assessment, and intelligence support. 3 Precision guided muni- 
tions depend on sophisticated computer programs for processing weapon en- 
gagement data, such as those embedded in the Low Altitude Navigation and 
Infrared-for-Night (LANTIRN) and the Joint Surveillance Target Attack Ra- 
dar (JSTARS) systems. Commercial off-the-shelf (COTS) technology is being 
exploited so that redesigns and updates in military computers can keep pace with 
the rapid commercial development in home and business computers. 

Webbing and Netting 

The computing power in transistors mounted on microprocessors has in- 
creased dramatically for combat systems in individual aircraft, ships, and battle- 
field units. However, it is in the netting and webbing of computers associated with 
command and control, surveillance, targeting, and gathering intelligence that is 
adding a new dimension to warfare. 6 In a computer web, commanders at all lev- 
els can simultaneously view the same battlespace. The synergism of several net- 
works, such as the Joint Planning Network, Joint Data Network, and Joint 
Composite Tracking Network, enhance defense against ballistic and cruise mis- 
siles. In both offense and defense, decision-making is speeded up. Innovative 
tactics and "self-synchronization" at the warrior level are facilitated. Coordina- 
tion and rapid maneuver among widely dispersed units are enhanced. There is a 
greater opportunity to get inside an adversary's observe, orient, decide, act 
(OODA) loop. Secure video teleconferencing, data base connectivity, direct 
downlink, and broadcast/receive capabilities provide access to intelligence, lo- 
gistic, and essential support data, including weather, mapping, terrain, and 
oceanographic predictions. 7 The correlation and fusion of data from sensors in 
satellites, aircraft, ships, and battlefield units enable sensor-to-shooter connec- 
tivity and precision targeting. A soldier or Marine equipped with a Situational 

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James H. Doyle, Jr. 



Awareness Beacon with Reply (SABER) has access to thousands of friendly 
force positions every hour, which greatly minimizes fratricide in battle. 8 The 
emerging global infrastructure of communication networks, computers, data 
bases, and consumer electronics provides the National Command Authorities 
and military commanders with new opportunities to gather intelligence and, 
most importantly, to get indications and warning of a crisis or threat of attack. 

Capabilities, Limitations, and Vulnerabilities 

But with all the high-tech capabilities and potential, computers and their net- 
works are only tools of warfare. Humans must make judgments, often based on 
insufficient or ambiguous data. Identification and discrimination regarding mili- 
tary targets and civilian casualties are difficult issues and cannot be resolved en- 
tirely by computer networks. In Kosovo, for example, restrictions on minimum 
altitudes and the types of authorized targets made it difficult for NATO forces to 
destroy an enemy who had no requirement to shoot, move, or expose himself 9 
Then there is the reality that computer networks are not always available or fully 
operable. Hard drives jam, memories fail, adapters burn out, cables sever, and 
servers saturate. 10 Difficult challenges of configuration control, standard com- 
puter language, reliability, and interoperability abound. 11 The Office of Man- 
agement and Budget places the number of Defense Department computer 
systems at 8,145, of which 2,096 are deemed critical to military operations. 12 
Furthermore, it is not easy to move "zeros" and "ones" where needed when 
bandwidth is constrained. There is also the ever-present problem of recruiting 
and retaining trained personnel to operate and maintain the sophisticated com- 
puter networks. In addition, data is not information. It is raw material that needs 
to be processed to obtain ground truth and avoid saturation. Since all data when 
displayed looks equally valid, computer-aided tools and filters are required to as- 
sign confidence levels to the accuracy of the information. 13 

For high-tech military forces, the capabilities of computers and their net- 
works far outweigh the limitations. But technical issues need to be vigorously 
addressed. Systems must be designed with greater robustness, redundancy, and 
the ability to degrade gracefully. 14 Security systems (firewalls, shielding, intru- 
sion detection devices, personnel checks, motion sensors, encryption, anti-virus 
software, and training) are required. But firewalls and intrusion detection de- 
vices can be bypassed, and all software is inherently flawed. 15 It must be recog- 
nized that command and control, communications, intelligence, surveillance, 
and reconnaissance systems have become much more vulnerable in information 
warfare. 16 This is especially true in communication systems, which rely on a 

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combination of military and civilian satellite networks and transponders. War 
games, modeling and simulation, and actual incidents reveal a number of meth- 
ods to attack computer networks. These include physical disruption of hardware 
and software, insertion of a virus, worm, or logic bomb into a computer pro- 
gram, flooding networks with false data, buffer overflows, malformed data, and 
e-mail attachments, as well as unsophisticated jamming. 17 Intelligence gathering 
satellites, military communication networks, sensor downlinks, and precision 
targeting could be disrupted or defeated. But low-tech military forces, while less 
dependent on computer networks, may, in some cases, be just as vulnerable to 
CNA. Command and control may be a single path network without redun- 
dancy and fall-back alternatives. Satellite communications may be completely 
unprotected. In addition to the vulnerabilities of information systems, computer 
network technology employed offensively has the potential of producing devas- 
tating effects on both military support (fuel, spare parts, transportation, mobili- 
zation, and medical supplies) and the civilian infrastructure (air traffic control, 
electrical generation, water distribution, hospital life support, emergency ser- 
vices, currency control, and, ominously, nuclear reactor operations). Thus, both 
high and low-tech military commanders and their national command authori- 
ties need to thoroughly analyze the legal and policy implications before resorting 
to CNA operations, either in offense or defense. Then, there are the unfriendly 
"hackers" and terrorist groups eager to exploit vulnerability asymmetries at 
whatever risk and at relatively low cost. Cyberspace is a highly competitive envi- 
ronment world-wide. The long term effectiveness of computer networks may 
be less about technology and more about the ability to organize and innovate. 

CNA and Consequences 

As indicated in the lead-off definition, a CNA can either be an attack on the 
information resident in computers and computer networks or a direct attack on 
the computers and their networks. Whether a CNA constitutes an "armed at- 
tack" 18 depends not on the means and methods used, but on the resulting conse- 
quences. 19 The means and methods of attack may be similar to other offensive 
information operations, such as psychological or electronic warfare, but the 
consequences may be severe injury, suffering, death, or destruction of property, 
and amount to or rise to the level of an armed attack. On the other hand, the 
consequences may be intrusive, annoying, or disruptive, but not an imminent 
threat to life or limb, or intended to cause direct damage or injury. In both of- 
fense and defense, US military commanders are guided by the Standing Rules of 
Engagement (SROE) for US military forces. The SROE bridge the transition 

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James H. Doyle, Jr. 



between jus ad helium andjws in hello by implementing the inherent right of 
self-defense and providing guidance for the application of force to accomplish 
the mission. 20 They are based on national policy, operational requirements, and 
US domestic and international law, including the law of armed conflict. The el- 
ements of self-defense and mission accomplishment are necessity and propor- 
tionality, although the meanings in the self-defense context are much different 
than when applied under the law of armed conflict for mission accomplishment. 
The SROE make no distinction in the guidelines for self-defense and mission 
accomplishment between an attack with conventional weapons and a computer 
network attack. Thus, the same general criteria would apply, with supplemental 
measures for a specific operation that might well include guidance on CNA 
operations. 

Self-Defense (Jus ad Bellum) 

A military force on a post-Cold War mission (humanitarian, peacekeeping, 
crisis control) could well be confronted with a computer network attack. The 
attacker could be a malicious hacker, terrorist group, or foreign armed force. 
Under the US SROE, necessity requires that the military commander must first 
determine whether the CNA is in fact either a hostile act or a clear demonstra- 
tion of hostile intent before he decides that it is necessary to respond. An armed 
attack, such as sinking a ship, firing on troops, invading territory, blockading 
ports, or mining harbors would in most circumstances be regarded as hostile acts. 
A physical or kinetic attack against the computer networks that are vital for com- 
mand and control, surveillance, targeting, or early warning could well preclude 
or impede the mission and thus also be considered a hostile act. On the other 
hand, a cyberspace intrusion into these same computer networks may or may 
not be a hostile act, although a disruption of the satellite network that provides 
indications of an ICBM launch might, per se, be a hostile act since active de- 
fenses are not yet available, and in any event, cueing information is so crucial. 

Although the CNA may not rise to the level of a hostile act, the consequences 
may demonstrate hostile intent, that is, placing the military force in imminent 
danger. Hostile intent, however demonstrated, has always been a difficult judg- 
ment call. The determination is both objective and subjective, influenced by 
up-to-date intelligence on an adversary and his prior conduct. One military 
writer has described the concept as an "expression of the national right of antici- 
patory self-defense at the unit level." 21 Locking on an aircraft with fire control 
radar, approaching on an attack profile, massing tanks and troops on the border, 
or mobilizing the military and civilian infrastructure for war can all be evidence 

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Computer Networks, Proportionality, and Military Operations 



of hostile intent. In cyberspace, there are a wide variety of methods of attack pre- 
viously mentioned that could adversely affect a military commander's computer 
networks. However, the means of attack and the consequences may not be tan- 
gibly present — no "see and touch" evidence. Besides, since cyberspace attacks 
are inherently anonymous, covert, seamlessly interconnected, and travel across 
international boundaries via relay points, it is difficult to identify and trace the 
source, and establish attribution. Is the perpetrator military or civilian, State- 
sponsored, a rogue organization, or an individual acting on his own? Absent a 
conventional attack component, manipulation or intrusion by itself does not au- 
tomatically indicate hostile intent. A CNA intrusion into the communications 
network could be just an intelligence probe for future operations. But a CNA to 
disrupt the air defense and targeting networks could be the critical step before 
launching an armed attack. There are many examples on both sides of the ledger, 
and critical questions to ponder. Do the consequences of a particular CNA place 
the military force in imminent danger? Is an adversary attempting to prepare the 
battlefield for an armed attack that is likely, imminent, or unavoidable? Is this the 
last opportunity for the military commander to counter the threat? 22 If so, the 
ingredients are there for hostile intent and the necessity to act. 

In a CNA situation, just as in a conventional attack, the response to counter 
the threat must be proportional, whether in anticipatory or actual self-defense. 
That is, under the US SROE, "the force used must be reasonable in intensity, 
duration, and magnitude, based on all the facts known to the commander at the 
time, to decisively counter the hostile act or hostile intent and to ensure the con- 
tinued safety of US forces." 23 In self-defense "proportionality points at a sym- 
metry or approximation in 'scale and effects' between the unlawful force and the 
lawful counter- force. ... A comparison must be made between the quantum of 
force and counter-force used, as well as the casualties and damage sustained." 24 
A military commander must decide what weapons, means of delivery, counter- 
measures, and tactics are the most appropriate for the situation. For example, the 
Doctrine for Joint Operations in operations other than war provides that "mili- 
tary force be applied prudently. . . . Restraints on weaponry, tactics, and levels of 
violence characterize the environment." 25 The objective is to respond with just 
enough force to control the threat and protect the forces. The response need not 
be in kind or executed on the spot, if time permits due consideration. For exam- 
ple, in Operation EARNEST WILL (reflagging and protecting Kuwaiti tankers 
during the Iran-Iraq Tanker War), after the USS SAMUEL B. ROBERTS 
(FFG-58) hit an Iranian-laid mine, the appropriate and proportional response 
selected by the National Command Authorities was to attack Iranian oil plat- 
forms, attacking Iranian ships only if they fired on US ships. 26 On the other 

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James H. Doyle, Jr. 



hand, a theater ballistic missile fired at the military force or a facility under its 
protection requires action within minutes to acquire, track, and engage the mis- 
sile. Also guiding a military commander in responding to an attack, CNA or 
conventional, will be a nation's policy objectives. US policy, as stated in the 
SROE, is to maintain a stable international environment and provide an effec- 
tive and credible deterrent to armed attack. If deterrence fails, in addition to be- 
ing proportional, the response should be designed to limit the scope and 
intensity of a conflict, discourage escalation, and achieve political and military 
objectives. 27 Finally, the use of force is normally the last resort. When time and 
circumstances permit, the potentially hostile force should be warned and given 
the opportunity to withdraw or cease threatening actions. 28 

During the Naval War College symposium, "Computer Network Attack and 
International Law," the Proportionality Working Group discussed various ap- 
proaches for developing a response to a CNA. 29 One such framework would be 
to analyze the attack in categories of consequences, such as a network attack with 
only network effects, a network attack with network and conventional effects, 
and a conventional attack with network and conventional effects. For each cate- 
gory evaluated, a military commander could consider various options for a pro- 
portional response: computer network only, both computer network and 
conventional, or conventional only. In reaching a judgment, a military com- 
mander, guided by the SROE, might pose a series of questions to be resolved for 
each option, matched against each category: Is there time for a warning to cease 
threatening actions and an opportunity for the adversary to withdraw? Does the 
CNA place the military force in imminent danger? Is the CNA the final stage in 
preparing the battlefield for an attack? Is this the last opportunity for a military 
commander to protect his force? Is the response contemplated reasonable in in- 
tensity, duration, and magnitude? Will the response effectively counter the 
threat and remove his force from danger? Is a computer network response or a 
conventional response the most appropriate, or a combination of both? If a com- 
puter network response, is there an ability to accurately assess the consequences? 
Does a computer network response involve a cross-border intrusion? Will the 
response assist in stabilizing the immediate crisis? Is the response designed to 
limit the scope and intensity of an impending conflict? Does it discourage escala- 
tion? Is the response consistent with maintaining a credible deterrent to further 
CNAs? What will be the effects, intended or unintended, on civilians, their 
property and infrastructure? Can these effects be distinguished from effects on 
military personnel, equipment, and infrastructure? 

In the case of a CNA with only network effects, the consequences, although 
degrading a particular computer network, may not place the force in imminent 



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danger or be evidence of an impending attack. The appropriate response might 
be to shift to an alternate network, use computer countermeasures to expel the 
intruder, sanitize the system, and report to higher authority. This situation 
would be analogous to tolerating an aircraft tracking radar, but not a locked on 
fire control radar. Higher authority, with the requisite technical expertise and 
network connections, could trace the intrusion, identify the perpetrator, and 
take appropriate action, such as a complaint to the relay State, if the CNA ap- 
pears to be State-sponsored. Or, if the intrusion is an intelligence probe, higher 
authority might choose to play the game and "grab the hacker," feeding him 
false information covertly. If, however, the network effects disable the air and 
missile defense network and are judged as the overriding evidence of armed at- 
tack, the immediate response might be to launch a conventional attack against 
the most threatening military targets — tanks and troops, aircraft on runways, 
missile sites, command headquarters, and the like. Such a response would be 
timely and might discourage an adversary from attacking or, at least, indicate that 
there will be a high cost to proceeding. This would not rule out a follow-up 
computer network response against, for example, the adversary's military com- 
mand and control network, executed at the appropriate level by trained network 
experts. In either situation of a CNA with network effects only, the proportion- 
ality set-point to trigger a response in kind should be high since the intrusion 
may be ambiguous and non-threatening or the response would not be timely, 
effective, or within the capability of the operational commander to execute. 

In a crisis situation, an adversary may choose to initiate a CNA that has both 
network and conventional effects, such as manipulating the air traffic control 
network of an aircraft carrier that causes collisions or near misses of aircraft in the 
approach and landing pattern. This attack would be less risky than attacking the 
carrier or its air wing. The overall effect is to raise the level of hostility and re- 
solve some of the ambiguity in identifying the source. Obviously the situation 
cannot be tolerated. If overall intelligence plus the conventional effects can pre- 
sumptively attribute the CNA to a particular adversary, the initial response 
might be a stern warning to cease the hazardous computer operations, in addi- 
tion to shifting to an alternate control mode, attempting to expel the perpetra- 
tor, and sanitizing the system. If, despite the warning and opportunity to cease, 
the disruption continues, the military commander might respond with a con- 
ventional, precision attack against the most appropriate military target that 
would reinforce the warning with force. Such targets might be a facility for the 
production of nuclear, chemical, and biological weapons, ballistic missile 
launchers that are not yet mobile, or a new warship about to be launched. This 
would be analogous to the response when the USS SAMUEL B. ROBERTS 

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James H. Doyle, Jr. 



hit the Iranian mine which was laid arbitrarily to hazard both warships and mer- 
chant ships. That response was neither in kind nor executed immediately. If the 
computer specialists also have the capability to intrude and disrupt one of the ad- 
versary's vital military computer networks, this would also be an appropriate and 
timely response. All of these responses are intended to control the crisis, discour- 
age escalation, and avoid collateral damage and incidental injury to civilians. 

In the case of a physical attack against a computer network asset itself, such as 
destroying a satellite (communications, navigation, imagery) or damaging a 
command and control (C2) node, the conventional effects are tangible and seri- 
ous. The source and location can probably be pinpointed. Destruction of a satel- 
lite without other evidence of hostile intent would not warrant an immediate 
physical or CNA response. But such an extraordinary act would have implica- 
tions and effects world-wide, and would merit immediate attention at the high- 
est levels of government, as well as the United Nations Security Council. If the 
destruction of the satellite or damage to the C2 facility is the prelude to armed at- 
tack, a robust and direct conventional response to blunt the attack would proba- 
bly be the most effective. All military targets that are part of or supporting the 
attack would be fair game. The objective would be to protect the force, control 
the threat, discourage escalation, and, at the same time, avoid collateral damage 
and incidental injury to civilians. A parallel CNA response to degrade, manipu- 
late, or destroy information resident in the adversary's C2 computer networks 
might effectively complement the conventional response. This response might 
target networks that support the armed attack, taking care to avoid unintended 
network effects that injure or kill civilians or damage their property. Here, the 
problem is sorting out the network effects that may be inextricably linked in the 
military and civilian infrastructure. 

There are numerous examples of network and/or conventional conse- 
quences and responses to a CNA that can be analyzed in the categories postu- 
lated. The most appropriate and proportional response will depend on a careful 
consideration of the facts, context, and intelligence in each particular case, what- 
ever method of determination is pursued. 

Mission Accomplishment (Jus in Bello) 

A military force involved in a crisis or action in self-defense that develops into 
a low intensity conflict or prolonged war could be authorized to conduct CNA 
operations, that is, attack the information resident in computers and computer 
networks, or attack the computers and their networks directly. In applying force 
to accomplish a mission, the SROE provides that US forces will be governed by 

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Computer Networks, Proportionality, and Military Operations 



the law of armed conflict 30 and rules of engagement. Also, as mentioned previ- 
ously, the elements of mission accomplishment are necessity and proportional- 
ity. Hostile acts and intent are presumed. Necessity means that attacks must be 
limited to military objectives, 31 and that force has to be constrained to that re- 
quired to accomplish the mission. 32 Proportionality in mission accomplishment, 
however, unlike self-defense, is not a comparison and symmetry between the 
quantum of force and counterforce used. 33 The objective is to defeat the enemy 
as rapidly as possible. Disproportionate force may be, and often is, required. But 
in applying counterforce, the law of armed conflict requires that a military com- 
mander observe the principle of distinction between combatants and noncom- 
batants, 34 precautions in attack, 35 and the law of targeting. 36 Although it is not 
unlawful to cause incidental injury to civilians, or collateral damage to civilian 
objects, incidental or collateral damage must not be excessive in the light of the 
military advantage anticipated by the attack. 37 In applying this proportionality 
balancing test, a military commander must take all reasonable precautions, based 
on information available at the time, to keep civilian casualties and damage con- 
sistent with mission accomplishment. He must also consider alternative methods 
of attack to reduce civilian casualties and damage. In addition to jus in bello pro- 
scriptions, a military commander will be guided by supplemental measures in the 
ROE that "define the limits or grants of authority for the use of force for mission 
accomplishment. " 38 

The Proportionality Working Group 39 also explored approaches for analyz- 
ing CNA offensive operations. For example, the CNA might be a network at- 
tack against a network target, a network attack against a non-network target, or a 
conventional (kinetic) attack against a network target. These categories, while 
overlapping and arbitrary, are intended to assist in focusing on the effects and 
consequences of a CNA. For each option evaluated in terms of effects and con- 
sequences, a military commander, guided by the SROE and battle plan, might 
pose a series of questions to be resolved: Will the CNA capture important enemy 
intelligence? Does it assist in getting inside the enemy's OODA loop? Can the 
CNA disrupt, control, or destroy the enemy's computer networks for intelli- 
gence collection and targeting? Will it contribute to establishing information 
dominance, air and maritime superiority, and space control? Does the CNA 
provide the military commander with new options for favorably controlling the 
rhythm of the battle? Will it influence the enemy to terminate military action 
and alter policy? Does the CNA degrade an enemy's supporting infrastructure? 
Is it essential in protecting own forces, equipment, and facilities? Overall, does 
the CNA contribute to the partial or complete submission of the enemy with the 
least expenditure of life, time, and resources? In coalition warfare, does it 

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James H. Doyle, Jr. 



preserve unity of effort and consensus in waging war? Does the CNA respect the 
inviolability of neutrals and their commerce? Is the CNA consistent with United 
Nations Security Council enforcement action, if any? Does the CNA involve 
cross-border intrusions? Is it compatible with diplomatic and political efforts to 
achieve a cease-fire, suspension of hostilities, armistice agreement, peace treaty, 
or other termination of the war? What are the effects of the CNA on protected 
persons (civilians; wounded, sick, and shipwrecked; medical personnel and 
chaplains; and prisoners of war)? What incidental injury to civilians or collateral 
damage is anticipated from the CNA, based on the best means to accurately as- 
sess the primary and secondary effects of a CNA? Can the military effects be dis- 
tinguished from the civilian effects? Is the incidental injury or collateral damage 
likely to be excessive in the light of the military advantage anticipated? Will it 
cause unnecessary suffering or be indiscriminate in nature? Are there alternative 
means and methods of attack that will reduce civilian casualties and damage from 
that considered likely from the CNA? Will a decision to withhold network attacks 
against network or non-network targets influence an enemy to also refrain from 
similar network attacks, and can this restraint be relied upon? Finally, pertinent 
to each of the questions, does the network or non-network target by its nature, 
purpose, or use make an effective contribution to the enemy's military action, 
and thus constitute a lawful military objective of the CNA. 

In the category of a network attack against a network target, the intention is 
to adversely affect the information resident in the enemy's computer network. 
Examples include introducing information or disinformation (not perfidious) 
into the computer network to influence or mislead behavior, intruding with a 
data device or technique to degrade the military C2 network, disrupting vital 
links in the integrated air defense (IAD) network, or manipulating the military 
communication network to confuse the timing of a maneuver or attack. In these 
and similar offensive computer operations, the ultimate consequences are nei- 
ther intended nor anticipated to involve incidental injury or collateral damage. 
Psychologically, the civilian population may, as intended, be influenced, but the 
effects would not be physical. A computer intrusion into the enemy's intelli- 
gence network to capture vital information, or indications and warning, would 
be a necessary step in preparing the battlespace, and probably would not even fall 
within the definition of a CNA. In any event, a network attack on the informa- 
tion in a computer network that is tailored to produce limited physical conse- 
quences may prove to be an effective non-lethal tool of warfare against military 
objectives. An alternative conventional attack calculated to degrade the C2 and 
IAD networks, for example, could result in civilian casualties and damage. 



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However, in most cases, these effects would probably not be considered exces- 
sive in the light of the military advantage anticipated. 

In the case of a network attack against a non-network target, the intention is to 
damage or destroy military objectives through the medium of a CNA operating 
on the information resident in the enemy's computer network. Examples would 
include disrupting the military air traffic control system to induce collisions or 
crashes, causing a military satellite to lose control and implode, disabling the elec- 
trical system in the enemy's C2 facility, and manipulating the computer network 
that manages vital military support. For these and other military targets, and as- 
suming an ability to accurately assess the primary and secondary effects, CNA op- 
erations may prove to be an effective method of prosecuting the war at less risk to 
one's own forces. However, network attacks on the civilian infrastructure, even 
though it supports the enemy's military effort, raises difficult issues. It may not be 
possible to distinguish the military from the civilian effects because of the inextri- 
cable linkage between the two. Even if that is possible, the CNA may set off a 
chain of effects that cascades beyond the military and into civilian institutions. This 
could raise questions of whether the CNA was indiscriminate and not directed at a 
valid military objective. Furthermore, a cascading CNA might result in disastrous 
consequences on essential services for the civilian population (electrical power, 
water distribution, life support, nuclear power operations). Even assuming, for ex- 
ample, a CNA against an electrical power grid that supports the military effort, and 
is therefore a valid military objective, there must be no indiscriminate cascading 
effects, and under the proportionality and balancing test, any incidental injury and 
collateral damage must not be excessive in view of the military advantage antici- 
pated. The point is not to rule out CNAs in this category, but to urge caution in 
their use in view of the uncertainty in predicting effects. 

An attack against an enemy's computers and computer networks with mis- 
siles, bombs, or artillery shells is the traditional means of attack. A military com- 
mander must insure that the various computer network sites and facilities are 
valid military targets and that incidental injury and collateral damage are kept to a 
minimum. Damage or destruction of C2 war rooms and command posts, for ex- 
ample, would contribute significantly to defeating the enemy. Air defense sites, 
microwave stations, data relay facilities, and communication satellites can also be 
electronically jammed from aircraft, ground stations, and warships. Damage or 
destruction of a dual-use military and civilian satellite would raise serious issues 
for high-tech military forces that are becoming extraordinarily dependent on 
satellites for both military and commercial purposes. Should the commander re- 
frain from attacking the satellite in the hope that the enemy will also exercise re- 
straint? Is the dual-use satellite a valid military target when the bandwidth used 

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James H. Doyle, Jr. 



by the military is relatively minor? Disruption, damage, or destruction of com- 
puter network facilities that provide essential civilian services, as well as support 
the military effort, such as electrical power grids, may be unavoidable in prose- 
cuting the war. But difficult proportionality judgments must be made even 
though there may not be the unpredictable cascading effects produced by a 
CNA. An assessment must be made that the civilian injury and damage will not 
be excessive in the light of the military advantage anticipated. Temporarily dis- 
abling the power grids by attacking with carbon chaff, for example, may reduce 
casualties and avoid more serious consequences, as well as influencing behavior. 
Attacking computers and computer networks serving primarily the civilian in- 
frastructure, such as banking systems, stock exchanges, water management, and 
research centers, would be difficult to justify in terms of a military advantage and 
would probably result in excessive civilian injury and damage. 

Just as in the jus ad bellum situation, there are many examples of actual or po- 
tential CNA offensive operations. While mission accomplishment proportion- 
ality takes on a different meaning from that in self-defense, the balancing test of 
military advantage versus excessive incidental injury and collateral damage must 
consider both the actual and cascading effects of a CNA, whatever method of 
analysis is used. 

Observations 

CNA operations as part of information warfare or network-centric warfare 
are in their infancy, with far-reaching implications for law, policy, and rules of 
engagement. The ability to predict and assess the damage from executing a CNA 
in offense or defense, similar to a precision strike weapon, is far from assured. 
CNAs may well prove to be invaluable in defeating the enemy and countering 
an attack, provided that trained and experienced computer network experts can 
accurately "hit" the target, control the effects, and avoid unintended cascading 
consequences. This assumes that CNA operations are authorized at the appro- 
priate level. All this adds to the complexity of proportionality judgments. How- 
ever, the basic rules in jus ad bellum andjws in hello still apply. An analysis of the 
targeting must be conducted for a CNA just as it is conducted for attacks using 
conventional weapons. On the defense side, the old adage of the best defense is a 
good offense may be turned on its head in the case of CNA operations. There is 
no question that a high-tech military force with significant network vulnerabili- 
ties must have a robust, passive protection against CNA. This requires increased 
awareness, training, technical support, hardware and software improvements, 
greater redundancy, and an ability to degrade gracefully in computer network 

159 



Computer Networks, Proportionality, and Military Operations 

equipment and systems. It also means that military commanders must plan and 
train to "work-around" network attacks that disrupt, deny, or destroy critical 
information resident in their computers and computer networks. This is partic- 
ularly important since rogue and terrorist groups without asymmetrical vulner- 
abilities can wage network war on the cheap with little regard for the risk. 

Notes 

1. Chairman of the Joint Chiefs of Staff, Joint Publication 3-13, Joint Doctrine for 
Information Operations, at GL-5 (1998) [hereinafter Joint Pub 3-13]. 

2. See Michael Ignatieff, The Virtual Commander: How NATO Invented a New Kind of War, THE 

New Yorker, Aug. 2, 1998, at 33. 

3. See Gary W. Schnurrpusch, Asian Crisis Spurs Navy TBMD, NAVAL INSTITUTE 

Proceedings, Sept. 1999, at 46-49. 

4. See The Cooperative Engagement Capability, 16:4 JOHNS HOPKINS APPLIED PHYSICS 
LABORATORY TECHNICAL DIGEST 377-396 (1995). 

5. See Austin G. Boyd and David G. Simpson, Satellite Communications: C 41 Link into the 3rd 
Millennium, 21:5 SURFACE WARFARE, Sept./Oct. 1996, at 11-16. 

6. For a discussion of the present and future potential of computer networks in warfare, see 
Arthur K. Cebrowski and John Garstka, Network- Centric Warfare: Its Origins and Future, NAVAL 
INSTITUTE PROCEEDINGS, Jan. 1998, at 28-35; James J. Kuzmich and Christopher P. 
McNamara, Land Attack from the Sea, NAVAL INSTITUTE PROCEEDINGS, Aug. 1999, at 52-55; 
Andrew F. Krepinevich, Calvary to Computer: The Pattern of Military Revolutions, in STRATEGY 
AND FORCE PLANNING 582 (Naval War College Faculty eds., 1995); William K. Lescher, 
Network- Centric: Is it Worth the Risk?, NAVAL INSTITUTE PROCEEDINGS, July 1999, at 58-63; 
Arthur K. Cebrowski, Network- Centric Warfare and C2 Implications, NAVAL WAR COLLEGE 
REVIEW, Spring 1999, at 4-11. 

7. See David G. Simpson, Using Space for a Battlefield Advantage, 21:5 SURFACE WARFARE, 
Sept./Oct., 1996, at 7-9. 

8. See Austin Boyd, Rapid Response Through Space: Reducing Battlefield Fratricide, id. at 27—28. 
Similarly, the new Joint Expeditionary Digital Information System (JEDI) is a briefcase-size 
command and control system with an Iridium satellite handset. It contains a personal digital 
assistant and a Global Positioning System (GPS) receiver, and can interface with the Global 
Command and Control System, displaying GCCS-like tracks. See Rupert Pengelley,_/ED/Remn/> 

for J SCOPE'S Mini C2 System, JANE'S INTERNATIONAL DEFENSE REVIEW, Oct. 1994, 
www.janes.com. 

9. See Phillip C. Tissue, 21 Minutes to Belgrade, NAVAL INSTITUTE PROCEEDINGS, Sept. 
1999, at 38-40. 

10. See Michael Keehn, Is the Navy Heading for a Crash?, NAVAL INSTITUTE PROCEEDINGS, 
July 1999, at 88-89. 

11. See Letitia Austin, Linking Acquisition to the Fleet, 21:5 SURFACE WARFARE, Sept./Oct. 
1996, at 8-9. 

12. See Pentagon Report: Pentagon Seeks to Boost Public Confidence in Y2K Readiness, NATIONAL 
Defense, Sept. 1999, at 10. 

13. See Alan D. Zimm, Human-Centric Warfare, NAVAL INSTITUTE PROCEEDINGS, May 
1999, at 28-31. 

14. See Robert F. James, Tlie Guts Behind the Glory, 21:5 SURFACE WARFARE. 
Sept./Oct.l996, at 2-7. 

• 160 



James H> Doyle, Jr. 



15. See Perry G. Luzwick, What's a Pound of Your Information Worth?: Constructs for Collaboration 
and Consistency, 20:4 NATIONAL SECURITY LAW REPORT, AUG. 1999, at 1, 6. 

16. See Joint Pub 3-13, supra note 1, at III-1-15; Office of General Counsel, Department of 
Defense, An Assessment of International Legal Issues in Information Operations (Nov., 1999) 
(The paper is appended to this volume as the Appendix). 

17. For a description of the effects of a "logic bomb," "worms," and a "sniffer," see Steve Lohr, 
Ready, Aim, Zap, NEW YORK TIMES, Sept. 30, 1996, at D-l. See also David Tubbs, Exploits: How 
Hackers Hack, 20:4 NATIONAL SECURITY LAW P^EPORT, Aug., 1999 at 14-16. 

18. For a discussion of the macro issues in the international law of information warfare, see 
LAWRENCE GREENBERG, SEYMOUR GOODMAN, AND KEVIN SOO HOO, INFORMATION 
WARFARE AND INTERNATIONAL LAW (1998) and WALTER G. SHARP, SR., CYBERSPACE 
AND THE USE OF FORCE (1999). 

19. For an innovative framework to analyze a CNA in jus ad helium situations, see Michael N. 
Schmitt, Computer Network Attack and Use of Force in International Law: Thoughts on a Normative 
Framework, 37 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 885-937 (1999). 

20. Joint Chiefs of Staff Standing Rules of Engagement (SROE), Chairman, Joint Chiefs of 
Staff Inst. 3121.01, Oct. 1, 1994 [hereinafter SROE] (The current version of the SROE was 
promulgated on Jan. 15, 2000, as CJCS Instruction 3121. 01A.) For an excellent discussion of the 
US Rules of Engagement, see James C. Duncan, The Commander's Role in Developing Rules of 
Engagement, NAVAL WAR COLLEGE REVIEW, Summer 1999, at 76-89. 

21. Duncan, supra note 20, at 82. 

22. See Schmitt, supra note 19. 

23. SROE, supra note 20, at A-5. 

24. YORAM DlNSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 231 (3d ed. 2001). 

25. Chairman Joint Chiefs of Staff, Joint Publication 3-0, Doctrine for Joint Operations, at V-3 
(1995). 

26. WILLIAM J. CROWE, THE LINE OF FIRE 187-211 (1993). 

27. SROE, supra note 20, at A-2. 

28. SROE, supra note 20, at A-6. 

29. Symposium on Computer Network "Attack" and International Law, Naval War College, 
June 1999. 

30. SROE, supra note 20, at A-2. 

31. "Military objectives are limited to those objects which by their nature, purpose, or use 
make an effective contribution to military action and whose total or partial destruction, capture, or 
neutralization, in the circumstances ruling at the time, offers a definite military advantage." 
Additional Protocol I to the Geneva Conventions of Aug. 12, 1949, and relating to the Protection 
of Victims of International Armed Conflicts, June 8, 1977, reprinted in Documents on the Laws of 
War 419 (Adam Roberts and Richard Guelff eds., 3rd ed. 2000). 

32. The Commander's Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 
5-2.1/ COMDTPUB P5800.1, para 5.2 (1995) [hereinafter NWP 1-14M]. 

33. See DlNSTEIN, supra note 24, at 231-235. 

34. Protocol I, art. 51, supra note 31, at 448-49. 

35. Protocol I, art. 57, supra note 31, at 452—453. 

36. NWP 1-1 4M, supra note 32, at para 8.1. 

37. NWP 1-14M, supra note 32, at para. 8.1.21. See also Protocol I, art. 57 2(a)(iii),5wpranote31,at 
453; SAN PJEMO HANDBOOK ON INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICTS 
AT SEA (Louise Doswald-Beck ed., 1995), para. 46, at 16; and William Fenrick, The Rule of 
Proportionality and Protocol I in Conventional War, 98 MILITARY LAW REVIEW 91, 125 (1982). 

38. Duncan, supra note 20, at 83. 

39. See Symposium, supra note 29. 



161 




Some Thoughts on Computer Network 

Attack and the International Law of 

Armed Conflict 



Louise Doswald-Beck* 



Introduction 



I 



t seems one has to accept as inevitable that when something useful for the 
J-L improvement of man's life has been invented, thoughts will either turn to 
how to weaponize or destroy it, or, in the case of computer network technol- 
ogy, both. 

The task of the international lawyer in the face of a new weapon or intended 
military activity is to establish how existing law applies and with what effect. 
Would existing law prohibit the weapon or activity or restrict it in any particular 
way? Would it be appropriate, for one or more policy reasons, to impose prohi- 
bitions or restrictions that do not already apply? Might it be the case, on the con- 
trary, that the new weapon or method might be an improvement from both a 
policy and humanitarian point of view? 

The purpose of this short chapter is to explore certain aspects of how com- 
puter network attack (CNA) could be affected by international humanitarian 
law (IHL), including the law of neutrality, based on the knowledge generally 
available so far on the military possibilities presented by computer networks. It 



Computer Network Attack and the International Law of Armed Conflict 



may be that these possibilities are overstated, but the chapter will base itself on 
the premise that a variety of the indicated effects would be possible. 

Applicability of the International Law of Armed Conflict (International 

Humanitarian Law) 1 

It is perfectly reasonable to assume that CNA is subject to IHL just as any new 
weapon or delivery system has been so far when used in an armed conflict. The 
only real difficulty in this regard would arise if the first, or only, "hostile" acts 
were conducted by these means. Would this amount to an armed conflict within 
the meaning of the 1949 Geneva Conventions and other IHL treaties? This 
question is close to, but not necessarily identical with, whether the behavior 
amounts to an armed attack within the meaning of Article 2(4) of the UN Char- 
ter. The ICRC Commentary to the 1949 Geneva Conventions indicates that in 
the case of a cross-border operation, the first shot suffices to create an interna- 
tional armed conflict, 2 which can therefore be of very short duration. 3 There 
are, of course, other views which would require a threshold of intensity or time, 4 
but this approach would lead to the need for evaluations that would create inevi- 
table uncertainties and ultimately to the same problems faced when establishing 
whether "war" existed without a formal declaration; this issue led to the aban- 
donment for the need for a "war" for the "law of war" to apply. The problem is 
still with us, however, in non-international armed conflicts where there remain 
many cases of uncertainty (or denial) as to whether the threshold and nature of 
violence has reached that of an armed conflict, rather than "just" internal vio- 
lence requiring "police" operations. 5 If the first or only "hostilities" that occur 
in a non-international situation were computer network attacks, the degree of 
doubt would be even greater. 

The problem is, of course, that so far hostilities have involved weapons which 
launch projectiles, or other types of energy transfer, that lead to visible physical 
damage. In the case of IHL, the motivation for the application of the law is to 
limit the damage and provide care for the casualties. This would militate in favor 
of an expansive interpretation of when IHL begins to apply. The likelihood of 
this threshold being linked with the perception that an armed attack within the 
meaning of Article 2(4) has occurred in the case of a cross-border CNA is, of 
course, high, given the historical development of the jus ad helium and the jus in 
hello . This would not be problematic if it had a restraining effect on the com- 
mencement of hostilities through CNA, either because of the Article 2(4) pro- 
hibition, or because the Security Council decided the CNA amounted to a 
threat to the peace and dealt with it in a way that avoided more damage. 

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Louise Doswald'Beck 



However, the danger lies in the possibility of the CNA being perceived as an 
armed attack justifying measures of self-defence, for such a characterization 
might escalate the situation further than would otherwise have been the case. 
Whether or not these linkages occur, there is an argument to be made in favor of 
the implementation of IHL when CNA is undertaken by official sources and is 
intended to, or does, result in physical damage to persons, or damage to objects 
that goes beyond the bit of computer program or data attacked. CNA alone in 
non-international contexts is even more problematic — it is far more likely to be 
seen solely as criminal behavior, although the potential for damage could be 
enormous and the groups undertaking this could be at least as well organized as 
"armed" groups. Once "normal" weapons are used, there is no problem at all. 
CNA will be an attack (in the sense of the jus in hello) as any other. Whether 
CNA alone will ever come to be seen as amounting to an armed conflict for the 
purposes of IHL implementation will probably be determined through practice, 
rather than a formal decision by the international community in the abstract, al- 
though the latter should not be ruled out. It will probably also depend on the de- 
gree of damage that CNA causes (the more it creates, the more likely it will be 
treated in the same way as an armed conflict). Perhaps even the term "armed" 
conflict will one day start sounding as outdated as "jus in bellol" 

How the Existing Law of Armed Conflict Would Affect the Use of Computer 

Network Attack 

As indicated earlier, one can safely assert that the whole body of IHL applies 
to the use of CNA. Three areas of this law seem, however, particularly perti- 
nent: the principle of distinction and all the rules that flow from it, the use of 
ruses of war and the prohibition of perfidy, and whether the rules relating to 
combatant status could be affected. In addition, some thought needs to be given 
to the law of neutrality during armed conflict. 

The Principle of Distinction 

Whereas in the eighteenth and nineteenth centuries methods of warfare 
meant that civilians were only directly affected by sieges and otherwise only in- 
directly by the general economic advantages or misfortunes caused by war, the 
advent of air and missile warfare in the 20th century brought the need for special 
protection for civilians against attack to the fore. The principle of distinction has 
therefore taken on an importance, and led to detailed treaty and customary law, 
that goes well beyond the few rules articulated in the 1899 and 1907 Hague 

165 



Computer Network Attack and the International Law of Armed Conflict 



Conventions. Although heartily derided by the "realists," those persons who 
strove to ban the dropping of bombs from the air 6 were obviously far-seeing 
people who realized the potential for massive destruction that this new method 
represented. Even restrictions on air warfare were slow to come about, only being 
accepted, in the form of the 1977 Protocols Additional to the Geneva Conventions, 
once the potential military utility of air warfare had been thoroughly explored. 7 

Although the form and probable effect of warfare is quite different, the same 
pattern may be showing itself in relation to CNA. Here is a new tool that in civil- 
ian life opens up access to the world through rapidity and ease of communication 
in a way that has been heretofore unseen. Moreover, it allows technological de- 
velopment that could lead to all kinds to extraordinary steps in human develop- 
ment. One suggestion that has been made is to consider banning at least some 
forms of CNA; 8 however, it has been rejected, probably because of the desire to 
further explore CNA's military potential. As always, there are those who argue 
that "progress" cannot be stopped, that new means and methods of warfare are 
inevitable, and that therefore there is really no point in trying to stop or regulate 
anything. Others prefer to see which new methods are useful in that they are 
more accurate, militarily more effective, do not cause unnecessary damage, and 
are not more trouble than they are worth. Needless to say, IHL in general, and 
the principle of distinction in particular, are based on the latter premise. It is 
hoped that, unlike bombardment from the air, careful thought will be given to 
CNA before launching into experimentation. 

The principle of distinction involves a number of rules that will be of particu- 
lar relevance for CNA: (i) the evaluation that objects considered for attack are 
indeed "military objectives" within the meaning of IHL; (ii) the prohibition of 
indiscriminate attacks; (iii) the need to minimize collateral damage and to abstain 
from attacks if such damage is likely to be disproportionate to the value of the mil- 
itary objective to be attacked; and (iv) the need to take the necessary precautions 
to ensure that the above three rules are respected. From what is known at pres- 
ent, there are potential problems as regards all of these rules in relation to CNA. 

Only Military Objectives May Be Attacked 

The definition of military objective contained in Additional Protocol I 9 is not 
only that accepted by the 155 States party to the treaty, but was also referred to as 
being the appropriate one to use by the representatives of several major 
non-party States at the recent diplomatic conference that adopted the Second 
Protocol to the Hague Convention for the Protection of Cultural Property 
of 1954. 10 In order for something to be a military objective, it must meet two 
cumulative conditions: it must make an effective contribution to the military 

166 



Louise Doswald'Beck 



action of the adversary and, in the circumstances ruling at the time, its attack 
must offer a definite military advantage to the attacker. It is clear that this defini- 
tion does presuppose a plan to be followed with a view to achieving a particular 
military result. It also presupposes a knowledge of what the adversary is using, 
and how it is being used, for its military action. The terminology was chosen 
carefully to prohibit certain behaviors of the Second World War, specifically, it 
addressed the attack of persons and objects on the basis that they are 
"quasi-combatants" or in one way or another help the "war effort." Such rea- 
soning leads sooner or later to no restraints, for anything can be justified this way. 
Indeed, it rapidly led to the United Kingdom deciding that "civilian morale" 
was to be a target 11 and, as a result, to the wholesale destruction of cities. 

The specification that the object must effectively help the "military action" of 
the adversary means that the link to the military operations must be a close and 
obvious one. The reference to the "circumstances ruling at the time" requires 
that the military advantage to the attacker be equally clear and obvious in the 
context of the attacker's military plan to achieve the particular military aim. 
During the negotiation of the Additional Protocols, this was considered to rep- 
resent both economy of force and military professionalism, thereby leading to 
the military result needed while moving away from generally attacking anything 
in the hope that in due course the adversary would surrender. The decision not 
to adopt a list of "military objectives" was part of the same reasoning. Any list 
could either exclude something that in the circumstances could be of great im- 
portance in achieving the particular military mission, or alternatively include 
things of little or no importance in the particular circumstances. It is for this rea- 
son that any "list" in a textbook or manual can never offer more than examples 
of what have at one point or another been considered to be military objectives in 
past conflicts — they will not necessarily be so in any particular future one. 

It is to be hoped that planning and precision will not be lost. Computer net- 
works can easily be seen as "communications." Many manuals refer to "means of 
communication" as typical military objectives — a simple reference to existing 
lists could lead to the appalling result that any computer network used by the ad- 
versary State and its citizens could be attacked. Quite apart from the fact that this 
would almost certainly hit protected objects, and in addition amount to an indis- 
criminate attack, it would not result from the necessary process of evaluation de- 
scribed above. In order to amount to a military objective, either the piece of 
network being affected or the object that the network is controlling must meet 
the two conditions. 

There could also be the temptation to try to totally remove the technological 
framework which the whole of society bases itself on (although this may well be 

167 



Computer Network Attack and the International Law of Armed Conflict 

technically impossible through CNA), on the reasoning that this would make 
that society's life so generally unpleasant that surrender would surely follow. 
The temptation is likely to be all the greater because military networks will 
probably be better protected from hacking than a number of civilian networks. 
It could also be asserted that this method would be more "humanitarian" than 
sending bombs. It is clear that this reasoning is quite different from that underly- 
ing the Protocols, which stress choices of target for the specific desired military 
goals. Is there a possibility that sophisticated military practice (which was the ba- 
sis for the rules in the Protocols) will change? What would happen to the princi- 
ple of distinction? An approach based on technological siege warfare would in 
effect make it disappear, or at least radically change its characteristics. It could re- 
quire that specially protected objects, e.g., hospitals, organize themselves so that 
they are not within the normal computer network (if this were practicable) in 
order to be protected. In effect, this would represent a return to the reasoning 
behind the rules of Geneva Convention IV of 1949 12 and the Hague Conven- 
tion of 1954, 13 which rely on the concept of the creation of various safe areas be- 
cause they assumed that the practices of World War II would prove inevitable. 
Such reasoning would amount to abandoning the approach of the Protocols and 
present customary law, i.e., that all objects that are not military objectives are 
safe from being deliberately targeted. 

Careful thought should be given before going down the road of technological 
siege warfare. Quite apart from the fact that it would be contrary to present cus- 
tomary and treaty law, the presumptions that such a practice would be based on 
are dubious for at least two totally separate reasons. First, society is increasingly 
becoming so dependent on modern technology that computer systems failure 
for a lengthy period would not be just "unpleasant" — it could easily lead to mass 
disease, starvation and other catastrophes 14 (it is probable that such a scenario 
could not be accomplished by CNA alone, but it may well be possible when un- 
dertaken in conjunction with other methods). On the other hand, and despite 
the recent example, it would not necessarily lead to surrender in a short period of 
time. Both reasons lead to the conclusion that surgical technological strikes, to 
the degree that this is technically possible, would make more sense. 

The Prohibition of Indiscriminate Attacks 

Additional Protocol I defines indiscriminate attacks in Article 5 1 (4) . ] ^ An at- 
tack is indiscriminate when it either is not carefully aimed at each military objec- 
tive (through carelessness or use of inappropriate weapons) or when its effects on 
a military objective are uncontrollable and unpredictable (an obvious and 

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Louise Doswald'Beck 



uncontroversial example would be the use of a bacteriological weapon against a 
group of soldiers) . 

From what has been written so far on CNA, this appears to be potentially the 
most serious problem, i.e., aiming accurately at what the intended target is and, 
even if one manages to strike it with precision, not at the same time creating a 
host of unforeseen and unforeseeable effects. 16 

The Problem of Collateral Damage 

The need to avoid, or at least minimize, damage to civilians and civilian ob- 
jects is reflected in Article 57(2) (a) (ii) of Protocol I, which indicates that "those 
who plan or decide upon an attack shall . . . take all feasible precautions in the 
choice of means and methods of attack with a view to avoiding, and in any event 
to minimizing, incidental loss of civilian life, injury to civilians and damage to ci- 
vilian objects." An attack only becomes in itself illegal, however, if it violates the 
rule of proportionality, a long-standing rule of customary law. The wording 
used in Article 51(5)(b) of Protocol I is "an attack which may be expected to 
cause incidental loss of civilian life, injury to civilians, damage to civilian objects, 
or a combination thereof, which would be excessive in relation to the concrete 
and direct military advantage anticipated." 

The evaluation as to whether likely civilian damage would be disproportion- 
ate has an inherent difficulty in that one is comparing two different things. 
Whereas the need to avoid or at least minimize collateral injury is a straightfor- 
ward rule relating to the choice of means or methods that should be preferred, an 
evaluation as to possible illegality is fraught with difficulty. A certain subjectivity 
seems inevitable, but as an anticipated result could be illegal, there ought to be 
some objective factors to follow. State practice in this regard is scant — just a few 
examples have been given on when such attacks have been desisted from — and 
they have usually been when either the possible target was something that was 
military in nature but in the circumstances unusable or where the object's value 
as a military objective could not be verified. 17 To complicate matters, certain 
statements of understanding indicate that the attack is to be considered as a 
whole when making the evaluation. 18 However, these statements should not be 
interpreted as meaning proportionality of the civilian damage caused during the 
entire campaign compared with military advantages obtained during a specific 
attack. Such an interpretation is impossible because the only evaluation that 
could be possible would be at the end of the conflict, whereas the rule requires 
the evaluation to be done before the attack concerned. Proportionality evalua- 
tions pursuant to the jus in hello should also not be confused with proportionality 
in self-defence, which is the jus ad bellum rule that requires the military action as a 

169 



Computer Network Attack and the International Law of Armed Conflict 



whole to be limited to what is necessary to restore one's territorial integrity. 19 
Rather, based on a number of sources, the statements of understanding can only 
be logically interpreted as referring to the fact that the military value of attacking 
an object (which has to be weighed against the likely civilian casualties) will ob- 
viously be assessed taking into account its role in the broader strategic purpose of 
a particular military operation that may consist of various individual actions. 20 
There could be, of course, a temptation to consider that whatever collateral 
damage was caused by CNA, it would surely be proportional to the military ad- 
vantage gained. This would be an abuse of the rule, as it requires a careful advance 
evaluation of the likely effects on the civilians. If the likely effects are quite un- 
clear and unforeseeable (which appears to be the technical situation at present), 
the attack would be an indiscriminate one and therefore illegal as such — the rule 
of proportionality would not even be relevant. 21 

Precautions in Attack 

It is obvious that in order to respect the rules relating to the principle of 
distinction, a certain amount of thought and planning is necessary. Such precau- 
tions are therefore nothing more than the expression of a bona fide implementa- 
tion of the law. 22 The advance evaluations indicated above are of particular 
importance, but it also ought to be possible to call off an attack once it becomes 
clear that what was thought to be a military objective is not one after all or ceases 
to be one, or if it becomes clear that the consequent collateral damage would be 
excessive. 23 This would be particularly relevant in cases of CNA methods that 
would not have an immediate effect on the target. 

The other aspect of great importance, in order to evaluate military objective 
or incidental damage, is that of sufficient intelligence information. The advan- 
tage of computer operations is that they can be conducted from the comparative 
security of a computer terminal far from the actual military operations. Com- 
puter network exploitation (CNE) could help gain maximum information on 
an adversary's situation, provided that such data is available on reachable net- 
works and that the data is not itself deliberate misinformation. However, al- 
though it is a valuable tool for gaining intelligence and does not pose the risks of 
physical presence, CNE cannot totally replace intelligence gathering by other 
means, especially the most reliable one, direct observation. 24 CNE combined 
with other intelligence sources could well provide for the possibility of good 
precautions being taken in attack. 

On the other hand, CNA conducted from a distance poses two particular 
problems in relation to precautions in attack. First, if one suspects that one is the 
object of such an attack, taking out the attacker is likely to prove to be very 

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Louise Doswald'Beck 



difficult because of the immense difficulty of being sure where the attack originated. 
The likelihood, therefore, of attacking back in quite the wrong place is high. 

Second, lack of physical presence near the object to be affected means that the 
likelihood of making mistakes as to whether something really is at that moment a 
military objective is high. Protocol I speaks in terms of the attacker doing "ev- 
erything feasible" to verify that the target is a military objective. The word "fea- 
sible" clearly indicates that perfection is not expected. It is a matter of common 
sense and good past military practice that commanders take into account the 
need to reduce exposure of their own armed forces (an eliminated army cannot 
win an armed conflict). However, it is only a recent practice that so much care is 
given to avoiding any military casualties on one's own side, and one can see how 
tempting CNA would be in such an endeavor. The law requiring precautions in 
attack cannot be simply eliminated if such precautions involve some physical risk 
to the attacker. Although not articulated anywhere as such, when such a practice 
means that there are many more civilian casualties than military, the concept of 
the principle of distinction is badly battered, perhaps even turned on its head. 
Once again, apart from amounting to a violation of existing law, such inaccuracy 
gives rise to concern as to the effectiveness of the intended military operation. 

Ruses of War and Perfidy 

Computer data provides new avenues for practicing ruses of war. The more 
CNE is undertaken, the more likely it is that misinformation will be deliberately 
planted to confuse the adversary. Such misinformation about one's own affairs is 
perfectly lawful, for it is analogous in principle to any other vehicle for misinfor- 
mation. Moreover, it is clear from traditional sources that ruses of war need not 
be limited to creating misinformation about oneself. 25 However, it must also be 
true that computer generated attacks cannot be undertaken whilst giving the im- 
pression that they come from the adversary's own side. This would be the equiv- 
alent to attacking while wearing the enemy's uniform, which is clearly illegal. 26 
As with all ruses of war, care must be taken that they do not cross the line into 
perfidy. Therefore, misinformation implicating protected persons or objects 
would be unlawful, as would CNE amounting to a breach of good faith, such as 
pretending to surrender or to create a truce. 27 

Combatants and CNA 

It is most likely that CNA and CNE would be carried out by specialized per- 
sonnel. What would be the legal situation of such persons? Could they be 

171 



Computer Network Attack and the International Law of Armed Conflict 

attacked by any means and in any place? What would be their status if captured? 
There is probably no reason why the rules should be any different than in tradi- 
tional armed conflict. 

If incorporated into the armed forces, such personnel would have all the 
rights and liabilities of combatants. Therefore, they certainly could be attacked 
like any other combatant and should endeavor to be in uniform if captured. The 
narrow exception in Article 44(3) of Protocol I (for those party to it), which 
would allow POW status if captured without uniform, may well not apply to 
such persons, as this provision is generally interpreted as applying only to com- 
batants in occupied territory, and only then in certain situations. 28 Persons cap- 
tured in the adversary's territory without uniform carrying out CNE would also 
qualify as spies. If conducted from outside the territory, however, the situation 
should be no different from someone gathering data from a spy satellite. 

Technicians that act for the military, but are not part of it, pose more of a 
problem. The persons listed in Article 4(4) of Geneva Convention III of 1949 29 
are entitled to prisoner of war status if captured, but the type of persons listed are 
more analogous to computer technicians that keep the machines in order, and 
not ones that actually undertake the attacks. It could well be, therefore, that per- 
sons who actually undertake CNA would be considered civilians who would 
have no POW status if captured. They would also be subject to attack, as they 
would be taking a "direct part in hostilities." 30 Whether those undertaking 
CNE are in exactly the same situation is less clear, and this is because State prac- 
tice is not consistent as to whether intelligence collection falls into the category 
of taking a "direct" part in hostilities. However, there is no reason why gather- 
ing intelligence by this means should be treated any differently from intelligence 
gathering by other means. The possibility of being treated as a spy would only 
occur if the CNE were carried out clandestinely in the territory of the adversary. 
The Hague Regulations of 1907, in particular Article 21, do not exclude the 
possibility that civilians could be spies for the purposes of IHL, although Article 
46 of Protocol I only refers to members of the armed forces. However, both 
treaties conceptually indicate the need to be caught in the act in the territory 
controlled by the adversary, although this is not the exact wording used. 31 How- 
ever, if the civilian undertaking CNA or CNE is not "claimed" by the army us- 
ing him, he could be simply treated as an individual breaking national law and 
therefore be subject to criminal law should he be captured on return to the 
country; the rule that he cannot be treated as a spy once he returns to his own 
army would not apply and there is no reason why POW status would be consid- 
ered either. 

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The Effect on Neutral States 

Although there are a number of discussions on whether there is a formal dif- 
ference between "non-belligerent" and "neutral" States, and a resulting differ- 
ence of legal regime, 32 this author believes that there is insufficient basis in State 
practice to support such an assertion. Therefore, for the purposes of this chapter, 
all States not party to a conflict will be treated as "neutral." 

As many networks link up and/ or are owned by different countries or their 
private citizens, and given that it is the general view that the effect of any CNA 
might not be limited to the intended target, the law relating to neutral States is of 
particular significance. The law of neutrality in cyberspace poses difficulties, be- 
yond those of other aspects of IHL, because neutrality law has led to legal re- 
gimes that differ depending on the region of operations. Thus, there are 
significant differences between the law applicable to land, sea (which is subdi- 
vided into different maritime areas), and outer space operations. It is not 
self-evident what the regime should be in relation to cyberspace. To suggest that 
it should vary depending on whether the data affected are supposed to be at any 
particular moment in a country's territory, passing via a satellite, or being con- 
ducted through an underwater cable would create a factual and legal nightmare. 

One could, of course, simply wait to see what happens and deduce customary 
law based on practice, rather like what initially happened in relation to the law of 
outer space, which began to take shape when the first satellites were actually put 
into orbit. However, this new area of activity did not escape formal regulation 
through a series of international instruments that began to be adopted after only a 
few years, initially in the form of UN resolutions and later a number of treaties 
which confirmed the practice that outer space and other planets could not be 
acquired by any nation nor be used to base certain weapons. 33 Therefore, the 
likelihood of CNA being left entirely to practice without more formal interna- 
tional legal regulation is somewhat slim. It would make sense at this stage to con- 
sider the kind of regime that would be appropriate, and, rather than be totally 
inventive, see whether basic principles of the law of neutrality could provide 
some answers. 

The basic premise of the law of neutrality is that a neutral State should not, 
through its actions, deliberately affect the outcome of armed conflict between 
belligerents. In return, the neutral expects not to be drawn into the conflict. An 
excellent description of the concept of neutrality and the basic rules that flow 
from it is contained in Volume II of Oppenheim's International Law. Certain pas- 
sages in this description remain of fundamental importance. After indicating that 
all States that are not drawn into the war are presumed neutral, it provides that: 

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Computer Network Attack and the International Law of Armed Conflict 



Since neutrality is an attitude of impartiality, it excludes such assistance and 
succour to one of the belligerents as is detrimental to the other, and, further, such 
injuries to the one as benefit the other. But it requires, on the other hand, active 
measures from neutral States. For neutrals must prevent belligerents from making 
use of their neutral territories, and of their resources, for military and naval 
purposes during the war. . . . Further, neutrals must, by all means falling short of 
becoming involved in hostilities or of abandoning their attitude of impartiality, 
prevent each belligerent from interfering with their legitimate intercourse with 
the other belligerent through commerce and the like, because a belligerent 
cannot be expected passively to suffer vital damage resulting to himself from the 
violation by his enemy of a rule, which, while it operates directly in favour of 
neutrals, indirectly operates in his favour as well. 

The required attitude of impartiality is not incompatible with sympathy with one 
belligerent, and disapproval of the other, as long as these feelings do not find 
expression in actions violating impartiality. . . . Moreover, acts of humanity on the 
part of neutrals and their subjects . . . can never be construed as acts of partiality, 
even if these comforts are provided for the wounded and the prisoners of one 
belligerent only. 34 

The same thought is put across even more succinctly by Professor Leslie 
Green: 

So long as the activities of these non-participants do not interfere with the 
legitimate activities of the belligerents or benefit one at the expense of the other, 
neutrals are entitled to have their territory and doings respected and unaffected 
because of the conflict. 35 

These passages indicate the importance of distinguishing between, on the one 
hand, the right of the neutral State to carry on its life, including commerce with 
belligerents, as normal, from, on the other hand, the prohibited behavior of 
actively favoring the outcome of the war through State acts. This is also the rea- 
soning, cited in Oppenheim, behind some of the more detailed rules, including 
those that distinguish between State acts and the acts of a State's citizens: 

International Law is primarily a law between States. ... In the first instance, 
neutral States are bound by certain duties of abstention, e.g., in respect of supply 
of loans and munitions to belligerents, which they are not bound to exact from 
their nationals. Secondly, neutral States are under a duty to prevent their territory 

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Louise Doswald'Beck 



from becoming a theatre of war as the result of passage of foreign troops or aircraft 
or of prolonged stay of belligerent men-of-war in their territorial waters. Thirdly, 
they are bound to control the activities of their nationals insofar as these may tend 
to transform neutral territory into a basis of war operations or preparations. At the 
same time, International Law renders unlawful certain activities of nationals of 
neutral States, like carriage of contraband or breach of blockade, without, 
however, imposing upon these States the duty to prevent or to penalise such acts. 
These are punished by the belligerent against whom they are directed. 36 

Oppenheim then recognizes the rather thin line between individual acti- 
vity and State activity in regulated economies, but indicates that the rule still 
exists. Although this text was published 48 years ago, practice has not really 
changed significantly, especially in the light of the precision given on export 
licences: 

From the case of actual governmental responsibility for the production of and 
trade in certain articles there must be distinguished that of governmental control 
over exports by the system of licensing and the like. The fact that the Government 
permits export which it could prevent by means of withholding the licence does 
not make it a party to the transaction. Its responsibility is engaged only when in 
thus acting it discriminates between the opposing belligerents. . . . 

. . . Apart from certain restrictions necessitated by impartiality, all intercourse 
between belligerents and neutrals takes place as before, a condition of peace 
prevailing between them in spite of the war between the belligerents. This applies 
particularly to the working of treaties, to diplomatic intercourse, and to trade. 

The same point is made by Professor Green: 

A neutral does not have to forbid the supply of war materielby resident individuals 
or companies, nor is it required to stop the passage of such goods across its 
territory. It is under no obligation to forbid the use of privately-owned 
communication equipment on behalf of belligerents, but if it limits the freedom 
of its nationals to provide such facilities this restriction must operate against all the 
belligerents. 38 

This passage stresses the fact that neutral States have, for the most part, the 
right to carry on life as normal. Their specific duties are relatively narrow, 
concentrating primarily on preventing their territory from being used as a base 

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Computer Network Attack and the International Law of Armed Conflict 

of operations by one belligerent or the other. If they choose to grant specific 
facilities (that must not directly concern military operations), they must be 
granted to all the belligerents equally, e.g,. if the neutral allows one belligerent to 
bring prizes to one of its ports, it must allow the other belligerent the same 
rights. 39 Therefore, any negative effect of the war on the neutral State would be 
indirect. 

The specific rights of belligerents in relation to neutral merchantmen in this 
context are more in the character of an exception to the general rule than other- 
wise. They are based on the rather special combination of being acts that are car- 
ried out against individuals, in an area that is not national territory, and stem 
from very long and peculiar practice specific to naval warfare. Any analogy be- 
tween computer networks and these special rules of neutrality relating to mer- 
chantmen on the high seas would be highly dubious; it would certainly not be 
based on the general principles which for the most part allow neutral citizens to 
carry on life as normal. State practice over the last 50 years is essentially consis- 
tent with this position. Arguments that most States are not really "neutral" be- 
cause of the degree of relations that they and their citizens have with belligerents 
appear to be founded on an exaggerated interpretation of the degree of restric- 
tions and duties that such States are supposed to have. 40 Therefore, a belligerent 
State would have to be very certain that a neutral State has indeed violated its du- 
ties of neutrality before considering self-help measures involving force to stop 
the violation. Such a violation of the duty of neutrality by the State cannot be 
easily asserted. In addition, the prohibition of the use of force in Article 2(4) of 
the UN Charter means that such a use of force by a belligerent could, if not 
clearly lawful, be not only a breach of the law of neutrality, but also a violation of 
the UN Charter. 41 

Returning specifically now to the question of computer networks, which 
are for the most part owned by companies that are more or less subject to a lim- 
ited degree of State regulation, basic principles of neutrality law would militate 
in favor of their continuing to be used as normal, even if some States are in 
an armed conflict with each other. The nearest equivalent to computer net- 
works in existing neutrality law is reflected in Article 8 of Hague Convention V 
of 1907: 

A neutral Power is not called upon to forbid or restrict the use on behalf of the 
belligerents of telegraph or telephone cables or of wireless telegraphy apparatus 
belonging to it or to companies or private individuals. 

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Louise Doswald-Beck 



In so far as much of the computer network does indeed use telephone lines, 
this provision is directly applicable. In other cases, both its implication and the 
basic principles of neutrality law would support application of the same rule. As 
far as transmission via satellite is concerned, there is no reason why the rule 
should be any different; freedom of the use of outer space in international law is 
extensive and the 1967 Outer Space Treaty does not contain any specific provi- 
sions that would prevent the use of neutrally owned satellites by belligerents or 
give the right to a belligerent to interfere with such satellites. Despite the indica- 
tion in Article III that the use of outer space should be pacific, and in Article I 
that it should be in the interests of all countries, the prohibitions that are clearly 
enunciated are limited to weapons of mass destruction, 42 and, at any rate, use 
must be in conformity with international law. 43 Without taking a stand on 
whether any type of military use of satellites is in conformity with the letter or 
spirit of the 1967 treaty, it contains nothing that would change the law of neu- 
trality as such, nor, to this author's knowledge, has it been interpreted as having 
done so. This brings us back to general neutrality law. 

It would appear, therefore, that a breach of neutrality would only occur if a 
neutral State specifically allowed a network to be built on its territory for the 
purposes of supporting the armed conflict of one or more belligerents or if it spe- 
cifically allowed a network to be devoted to this purpose, for doing so would be 
the equivalent of allowing its territory to become a base of operations. This con- 
clusion mirrors Article 3 of Hague Convention V: 

Belligerents are . . . forbidden to 

(a) Erect on the territory of a neutral Power a wireless telegraphy station or other 
apparatus for the purpose of communicating with belligerent forces on land or 
sea; 

(b) Use of any installation of this kind established by them before the war on the 
territory of a neutral Power for purely military purposes, and which has not been 
opened for the service of public messages. 

Article 5 of the same treaty indicates that neutral States must not allow any of 
these acts to occur on its territory. 

So much for the use of computer networks by neutrals and belligerents. What 
would be the case if a CNA was directed at a target in a belligerent country but 
affected a neutral country. If such an effect was unforeseeable and unlikely, then 
it would be purely accidental. However, if such an effect was probable or even 

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Computer Network Attack and the International Law of Armed Conflict 

possible, then the situation would not be the same. The law of neutrality is very 
strict in its prohibition of any violation of neutral territory. As Article 1 of the 
1907 Hague Convention V puts it, "the territory of neutral Powers is inviola- 
ble." The fact that military operations must not adversely affect neutral territory 
is further reflected in the traditional rule that a blockade must not bar access to 
the ports and coasts of neutral States. 44 

State practice also indicates that all due precautions must be taken by 
belligerents to avoid any, even collateral, damage to neutral States. During 
the Second World War, US bombers unintentionally damaged a Swiss border 
town on April 1, 1944. Not only did Switzerland protest, but the US govern- 
ment also recognized that due precautions had not been taken, formally 
apologized for the incident, and promptly paid four million dollars in repara- 
tions. The US then issued directives prohibiting bombings within 50 miles 
of Switzerland. 45 

Such a clear and strict approach means that a computer network attack that 
could well have an adverse effect on neutral territory would be a violation of in- 
ternational law. 

Conclusions and Further Considerations on Possible Future Legal 

Developments 

It is clear that CNA could only be undertaken to the degree and in a fashion 
that would respect existing law. Certain uses would probably be not only viola- 
tions of the law of armed conflict, but also amount to war crimes, in which case 
the individuals involved would be subject to punishment both at the national 
and international levels within the context of applicable international law. It 
should also not be forgotten that such breaches require payment of compensa- 
tion, especially in the context of international armed conflicts, where compensa- 
tion is a long-standing requirement. 46 In addition, the trend towards requiring 
reparation to be made to victims of international crimes is reflected in Article 75 
of the Statute of the International Criminal Court. 

In addition to these considerations, further steps deserve careful consider- 
ation. First, some thought needs to be given, after technical analysis, as to 
whether certain types of actions (for example, the introduction of worm viruses) 
would be inherently indiscriminate. If so, in principle they would automatically 
be illegal weapons 47 and ought to be formally banned as such. This is probably 
the reasoning behind part of paragraph 3 of the draft Russian resolution (that was 
presented to the First Committee of the 1998 General Assembly): 

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Louise Doswald-Beck 



Invites all Member States to inform the Secretary-general of their views and 
assessments concerning . . . : 

advisability of developing international legal regimes to prohibit the 
development, production or use of particularly dangerous forms of information 

48 

weapons . . . 

This suggestion was not accepted by the United States which took the posi- 
tion that: "it is premature at this point to discuss negotiating an international 
agreement on information warfare" and that "there seems to be no particularly 
good reason for the United States to support negotiations for new treaty obliga- 
tions in most of the areas of international law that are directly relevant to infor- 
mation operations." 49 The resolution finally adopted, 50 therefore, does not 
contain this proposal, but this does not make such a suggestion any less valid. 

Second, given that there does appear to be more support for the idea of inter- 
national cooperation to suppress unwelcome private actions, 51 there may well 
be a move towards creating universal jurisdiction for the punishment of certain 
hackers, either on the basis of permissive universal jurisdiction (based on the 
model of the customary law relating to piracy and most war crimes), or of com- 
pulsory universal jurisdiction (such as that created by treaty for grave breaches, 
torture, and certain types of terrorist acts). Even if universal jurisdiction as such is 
not created, it is likely that there will be arrangements to facilitate the extradition 
and punishment of such offenders. 

Finally, a careful policy evaluation ought to be made as to the advantages and 
disadvantages of embarking on computer network attacks. On the one hand, if 
military advantages can be gained through this method which not only respect 
existing law but also reduce physical damage and casualties, then this would be a 
definite "plus." On the other hand, computer network attacks do have the po- 
tential to seriously mess up a wonderful new human achievement. In this regard, 
the most technologically advanced societies would be the most at risk. These 
anxieties are clearly reflected in the preambular paragraphs of the two General 
Assembly resolutions adopted in 1998 and 1999, which are virtually identical. 52 
The operative paragraphs in effect only call on States to think about existing 
threats and what could be done about them, in particular the "Advisability of de- 
veloping international principles that would enhance the security of global in- 
formation and telecommunications systems and help to combat information 
terrorism and criminality." 53 The fact that military applications are possible is 
recognized in the first preambular paragraph which does not exclude as such this 
use but goes on the say that it is important to maintain and encourage civilian 
use. The policy question remains, therefore, "is CNA worth it?" Or would it be 

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Computer Network Attack and the International Law of Armed Conflict 



more intelligent to outlaw this form of warfare before serious damage begins? It 
is hoped that we will not just "wait and see!" 

Notes 

* This chapter reflects the personal views of the author and in no way engages the responsibility 
of the International Commission of Jurists. 

1 . These terms are generally accepted as being interchangeable. Some might question whether 
aspects of the law of neutrality that are more concerned with the protection of the sovereign 
territory of neutral nations than humanitarian aspects could be properly characterised as 
"international humanitarian law." However, dividing up neutrality law for the purpose of making 
such a distinction would be awkward and unnecessary. 

2. The ICRC Commentary to Article 2 of all four Geneva Conventions states that: 

Any difference arising between two States and leading to the intervention of members of 
the armed forces is an armed conflict within the meaning of Article 2. ... It makes no 
difference how long the conflict lasts, or how much slaughter takes place. The respect due to 
the human person as such is not measured by the number of victims. 

The ICRC Commentary to Geneva Convention Article 6, elaborates further: 

By using the words "from the outset of the conflict " the authors of the Convention wished 
to show that it became applicable as soon as the first acts of violence were committed, even if 
the armed struggle did not continue. Nor is it necessary for there to have been many victims. 
Mere frontier incidents may make the Convention applicable, for they may be the 
beginning of a more widespread conflict. 

3. Id. at 59. Lieutenant Goodman, shot down by the Syrians on December 4, 1983, was held for 
one month, during which he was visited by the ICRC "in accordance with standard criteria" on 
the basis that the incident did amount to an armed conflict, albeit very short. 1983 ICRC ANNUAL 
Report 63. 

4. For example, Howard Levie, Tlie Status of Belligerent Personnel "Splashed" and Rescued by a 
Neutral in the Persian Gulf Area, ASIL PROCEEDINGS 597, 598, 609-610 (1988). 

5. See, e.g., JAMES E. BOND, RULES OF RIOT: INTERNAL CONFLICT AND THE LAW OF 
WAR, 51-52 (1974); George Abi-Saab, Humanitarian Law and Internal Conflicts: Tlie Evolution of 
Legal Concern, in HUMANITARIAN LAW OF ARMED CONFLICT: CHALLENGES AHEAD 213, 
215-216 (Astrid Delissen & Gerald Tanja eds., 1991). 

6. Declaration (IV, 1) to Prohibit, for the Term of Five Years, the Launching of Projectiles and 
Explosives from Balloons and other Methods of Similar Nature, July 29, 1899, 1 AMERICAN 

Journal of International Law 153 (Supp., 1907). See also, David H.N. Johnson, 
Rights in Air Space, 1965: 

It was to the Disarmament Conference in 1932 that the French Government submitted, in 
addition to a proposal to prohibit air attacks against civilians and indeed to abolish 
bombardment from the air altogether, a plan for the internationalisation of civil air transport 
under a regime organised by the League of Nations. The proposal came to nothing. 
(p. 38) ... At the Disarmament Conference in 1932 four various proposals were put forward 
for the abolition of bombing, and even of air forces; but these came to nothing, (p. 45). 

During discussions on the problem of aerial bombardment during this period, the ICRC also 
indicated its view that a total prohibition of bombardment from the air would be the best solution 
to protect civilians: 

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Louise Doswald'Beck 



Le Comite international estime que la seule maniere de mettre les populations civiles a l'abri 
de certains des plus graves perils crees par l'etat de guerre est l'interdiction pure et simple du 
bombardement aerien. ... II adresse dans ce sens un appel pressant a la Conference. 

Documents relatifs A la guerre chimiques et aerienne presentes aux membres 
de la Conference pour la redaction et la limitation des armements par le 
COMITE INTERNATIONAL DE LA CROIX-ROUGE 5 (Geneva, 1932) (the text of the appeal 
quoted is dated February 18, 1932). 

7. A notable failed attempt was the drafting of the "Rules concerning the control of wireless 
telegraphy in time of war and air warfare" by a Commission of Jurists at The Hague, December 
1 922— February 1923 (see esp. arts. 22—24) [hereinafter Draft Resolution]. This Commission was 
constituted in accordance with a resolution of the Washington Conference (1922) on the 
limitation of armaments. These rules were never codified. Johnson (supra note 6, at 53) quotes 
military commanders as saying, in short, that in the past towns would have been besieged to win 
wars, which caused much more suffering than air raids during the Second World War. Johnson, 
who wrote in 1965, and therefore before negotiations for Additional Protocols to the Geneva 
Conventions, refers to Professor Georg Schwarzenberger, who 

concluded that under modern conditions the standard of civilisation has retreated before the 
necessities of war, that the traditional distinction between combatants and non-combatants 
has largely disappeared and that the only persons who may still expect immunity from acts 
of warfare are persons who are both unconnected with military operations or the 
production of war materials and reside in areas that are 'sufficiently remote' from likely 
target areas. 

See also, J.M. SPAIGHT, AIR POWER AND WAR RIGHTS 244-258 (3rd ed. 1947) (see, e.g., 
Proposals of 1923, Disarmament Conference of 1932, French proposals at 1932 Conference, 
British proposals at 1932 Conference, British proposals at 1933 Disarmament Conference, 
Resolution of July 22, 1932, proposed Air Pact between "Locarno Powers" of February 1935, 
German proposals of 1935-1936, etc.). 

8. UN General Assembly, First Committee, Letter dated September 23, 1998, from the 
Permanent Representative of the Russian Federation to the United Nations to the Secretary 
General, concerning Agenda item 63, "Role of science and technology in the context of 
international security, disarmament and other related fields," A/C. 1/53/3, Sept. 30, 1998. 

9. Article 52(2), which reads as follows: 

In so far as objects are concerned, military objectives are limited to those objects which by 
their nature, location, purpose or use make an effective contribution to military action, and 
whose total or partial destruction, capture or neutralisation, in the circumstances ruling at 
the time, offers a definite military advantage. 

10. This Protocol, adopted on March 26, 1999, repeats the same definition. The States that 
supported this definition as the appropriate one to use in the new Protocol, because of its 
articulation in Additional Protocol I, were the United States, India, Turkey, France and Israel. 

11. JOHNSON, supra note 7, at 48-49. See also, Hays Parks, The Protection of Civilians from Air 
Warfare, 27 ISRAEL YEARBOOK ON HUMAN RIGHTS 77-82 (1997). 

12. Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 
1949, art. 14, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. GC IV relates to hospital and 
safety zones and localities. A hospital zone or locality is generally of a permanent character and is 
established outside the combat zone in order to shelter military or civilian wounded and sick from 
long range weapons, especially aerial bombardment. A safety zone or locality is generally of a 
permanent character and is established outside the combat zone in order to shelter certain 
categories of the civilian population, which, owing to their weakness, require special protection 



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Computer Network Attack and the International Law of Armed Conflict 



(children, elderly people, expectant mothers, etc.) from long-range weapons, especially aerial 
bombardment. Article 15, GC IV, relates to neutralized zones, that are generally of a temporary 
character and are established in the actual combat zone to protect both combatant and 
non-combatant wounded and sick, as well as all members of the civilian population who are in the 
area and not taking part in the hostilities, from military operations in the neighborhood. 

13. Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 
14, 1954, 249 U.N.T.S. 240. Article 2 states that the protection of cultural property shall comprise 
the safeguarding of and respect for such property. Article 3 states that the High Contracting Parties 
undertake to prepare in time of peace for the safeguarding of cultural property situated within their 
own territory against the foreseeable effects of an armed conflict, by taking such measures as they 
consider appropriate. Article 8, relating to Special Protection, makes it clear that this protection 
can only be given if the special shelters that are created or the monuments to be listed in a special list 
are not in any industrial center nor near any military objective, including communications lines. 
This restriction, which reflects the old system, has been remedied in the new Protocol II of the 
1954 Convention, adopted in 1999, which reflects the new reasoning and therefore does not 
repeat these restrictions for property under "enhanced protection." 

14. The problem of the increasingly integrated information society is noted in Daniel Kuehl, 
The Ethics of Information Warfare and Statecraft, www.infowar.com/mil_c4ij.html-ssi. 

15. Which reads as folio ws: 

Indiscriminate attacks are: (a) those which are not directed at a specific military objective; 
(b) those which employ a method or means of combat which cannot be directed at a specific 
military objective; or (c) those which employ a method or means of combat the effects of 
which cannot be limited as required by this Protocol; and consequently, in each such case, 
are of a nature to strike military objectives and civilians or civilian objects without 
distinction. 

Paragraph 5 refers to two other situations "to be considered as indiscriminate." In this author's 
view they are not, strictly speaking, indiscriminate, but rather behaviors that are oudawed for 
specific reasons. Paragraph 5(a) refers in effect to target area bombardments which deliberately 
treat as one target clearly separated and distinct military objectives even though civilians He 
between them. This behavior is correctly outlawed because, in this author's view, it amounts to a 
deliberate targeting of civilians, i.e., those in between the military objectives. Paragraph (b) 
represents the customary rule that incidental damage (i.e., damage that is inevitable or likely, but 
not in itself intended) during attack may not violate the rule of proportionality. Once again, this is 
not really a description of an "indiscriminate" attack, but rather a prohibition on attacks on 
military objectives that, although as well aimed as possible, are still likely to create more civilian 
damage than the objective is worth. It is for this reason that the issue of proportionality is treated 
in the next section of this article. 

16. Various "tools of the trade" are described in DEFENSE NEWS, August 9, 1999, at 6. The 
problems relating to predictability are referred to in a variety of writings, including Lawrence 
Downs, Jr., Digital Data Warfare: Using Malicious Computer Code as a Weapon, in XIII ESSAYS ON 
STRATEGY 43 (Mary Sommerville ed., 1996); Myron Cramer & Stephen Pratt, Computer I trusts 
in Electronic Warfare, www.infowar.com/survey/virus_ew.html; Matthew Devost, Tlie Digital 
Threat: United States National Security and Computers, www. devost.net/mgd/documents/ 
digitalthreat.asp; Roger Barnett, Information Operations, Deterrence, and the Use of Force, www.nwc. 
navy.mil/press/review/1998/spring/artl - sp8.htm. 

17. Burrus Carnahan, Linebacker II and Protocol I: the Convergence of Law and Professionalism. 31 
AMERICAN UNIVERSITY LAW REVIEW 861, 865 (1981), in relation to a probable vehicle depot 
during the Vietnam war; U.S. Defense Department Report on the Role of the Liw of War in the Conduct 

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Louise Doswald'Beck 



of the Persian Gulf War, 31 INTERNATIONAL LEGAL MATERIALS 612, 626 (1992), in which 
reference is made to the decision not to attack two fighter aircraft next to the ancient temple of Ur: 

Commander in Chief Central Command . . . elected not to attack the aircraft on the basis of 
respect for cultural property and the belief that positioning of the aircraft. . . . effectively had 
placed each out to action, thereby limiting the value of their destruction . . . when weighed 
against the risk of damage to the temple. 

Otherwise the same report refers rather vaguely to military targets not being attacked because of 
the risk to civilian persons or property: 

Coalition forces also chose not to attack many military targets in populated areas or in or 
adjacent to cultural . . . sites, even though attack of those military targets is authorised by the 
law of war. 

Id. at 624. 

18. Several countries have made interpretative declarations concerning Article 51(5)(b) of 
Additional Protocol I (1977) that references to the "military advantage" are intended to mean the 
advantage anticipated from the military attack considered as a whole and not only from isolated or 
particular parts of that attack. See, e.g., declarations upon ratification by Australia (June 21, 1991), 
Canada (November 20, 1990), Italy (February 27, 1986), the Netherlands (June 26, 1986), and the 
United Kingdom (January 28, 1998). 

19 There are different views as to whether, and if so what, other ends can be justified as needs of 
self-defence. This chapter does not intend to go into this issue. 

20. See, in particular, an analysis of this question in the ICRC document on Elements of 
Crimes prepared for the Preparatory Commission for the International Criminal Court, UN Doc. 
PCNICC/1999/WGEC/INF.2/Add.l at 29-32. 

21. Unless, of course, the perpetrator were to be indicted as a war criminal under this rule. The 
fact that he or she was aware that an evaluation of likely results was not even possible would be an 
interesting test case, as Article 85(3)(b) of Protocol I and the ICC Statute both indicate that the 
accused needed to have knowledge of the extent of the civilian damage that would be caused. 

22. They are spelled out in Article 57 of Protocol I 

23. This is spelled out in Article 57(2) (b) of Protocol I 

24. It is somewhat ironic that the most accurate intelligence, which is the best way to restrict 
attacks to clearly identified military objectives, is probably that collected directly by undercover 
agents. However, the price to be paid is that spies are not entitled to prisoner-of-war status. One 
could wonder whether this very long-standing custom is still appropriate. 

25. See, e.g., LASSA OPPENHEIM, II INTERNATIONAL LAW 429 (Hersch Lauterpacht ed., 
1952), which offers the following examples: "the watchword of the enemy may be used, deceitful 
intelligence may be disseminated, the signals and bugle calls of the enemy may be mimicked to 
mislead his forces." 

26. Id. 

27. Id. and art. 37 of Protocol I. 

28. Interpretative declarations upon ratification of Additional Protocol I (1977) by Australia 
(June 21, 1991), Belgium ( May 20, 1986), Canada (November 20, 1990), Germany (February 14, 
1991), Ireland (May 19, 1999), Republic of Korea (January 15, 1982), and United Kingdom 
(January 28, 1998) state that the situation described in the second sentence of paragraph 3 of Article 
44 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1. 
The interpretative declarations by Italy (February 27, 1986) and Spain (April 21, 1989) state that 
the situation described in the second sentence of paragraph 3 of Article 44 can exist only in 
occupied territory. 



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Computer Network Attack and the International Law of Armed Conflict 



29. Which reads as follows: 

Prisoners of War, in the sense of the present Convention, are persons belonging to one of 
the following categories, who have fallen into the power of the enemy: . . . Persons who 
accompany the armed forces without actually being members thereof, such as civilian 
members of military aircraft crews, war correspondents, supply contractors, members of 
labour units or of services responsible for the welfare of the armed forces, provided that they 
have received authorisation from the armed forces which they accompany, who shall 
provide them for that purpose with an identity card. . . . 

30. Article 51(3) of Protocol I, which represents long-standing customary law. 

31. See arts. 29 and 31 of the Hague Regulations and art. 46(3) & (4) of Protocol I. 

32. Discussions on this issue took place during one of the meetings of experts (Geneva 1993) 
that led to the SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED 
CONFLICTS AT SEA (text and commentary published by Cambridge University Press, 1995) 
[hereinafter SAN REMO MANUAL]. Two papers were prepared on this issue, one by Wolff 
Heintschel von Heinegg entitled "Neutrality and Non-Belligerency" and the other by Dietrich 
Schindler on "Neutrality and Non-Belligerency in Armed Conflicts at Sea" (filed in the ICRC 
Archives). Both reach the conclusion that there is no such legal difference and the Manual treats 
equally all States not taking part in the conflict as "neutral." Reference is also made to this idea, but 
likewise rejected, in III ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL LAW 552 (Jan Mayen 
ed., 1997). 

33. In particular: G.A. Res. 1721(1961) and 1962 (1963); the 1967 Treaty on Principles 
Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon 
and Other Celestial Bodies; the 1972 Convention on International Liability for Damage Caused by 
Space Objects; the 1979 Agreement Governing the Activities of States on the Moon and Other 
Celestial Bodies; and the various telecommunications INTELSAT agreements 

34. OPPENHEIM, supra note 25, at 654-655 (para. 294). 

35. Leslie Green, The Contemporary Law of Armed Conflict 268 (2d ed. 2000). 

See also ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL LAW, supra note 32, at 551: 

A neutral State has the right to demand respect for its independence and above all for its 
territorial sovereignty, including its air space. It has the right to maintain relations with all 
other States, whether neutral or belligerent. . . .The supreme concept is that the neutral 
State may not, by governmental measures, intervene in the conflict to the advantage of one 
of the belligerents. 

36. OPPENHEIM, supra note 25, at 656 (para. 296). 

37. Id., at 659 (paras. 296a and 297). 

38. GREEN, supra note 35, at 262-63. 

39. OPPENHEIM, supra note 25, at 675-76 (para. 316). See also, art. 9, Hague Convention XIII 
of 1907. 

40. Oppenheim stresses over and over again the right of neutral States to continue their 
commerce with belligerents. See, e.g., 61 A (paras. 314 and 315), 675 (para. 316), 676 (para. 318). 
and 677 (para. 319). 

41. This issue was hotly debated during the discussions leading to the San Remo Manual on 
International Law Applicable to Armed Conflict at Sea {supra note 32). The result in Paragraph 22 is 
more restrictive than the traditional right of self-help in such a circumstance. 

42. Art. IV. 

43. Art. III. 



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Louise Doswald'Beck 



44. SAN REMO MANUAL, supra note 32, para. 99, which reflects art. 18 of the 1909 London 
Declaration. During the drafting of the San Remo Manual, this provision was totally uncontested. 

45. J. Helmreich, The Diplomacy of Apology — U.S. Bombings of Switzerland during World War II, 
AIR UNIVERSITY REVIEW, May-June 1977, at 20, 21-23. The letter of apology, dated 4 April 
1944, issued by the US Embassy in Berne, contained the following: 

Le profond regret de tous les Americains pour le tragique bombardment par les bombardiers 
americains de la ville Suisse de Schaffhouse le ler avril . . . un groupe de bombardiers . . . 
n'ont pas pris les larges precautions prevues pour eviter des incidents de ce genre. . . . Le 
Secretaire de la Guerre ... a demande en meme temps au Secretaire d'Etat d'assurer votre 
Gouvernement que toutes precautions seront prises pour prevenir autant qu'il est 
humainement possible la repetition de pareil malheureux accident. 

15 DOCUMENTS DlPLOMATIQUES SUISSES 1848-1945, at 315. 

46. 1907 Hague Convention IV, art. 3, repeated in Additional Protocol I, art. 91. 

47. See, e.g., the articulation of basic rules of IHL in the Advisory Opinion of the International 
Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, para. 95, July 8, 1996: 
"Thus, methods or means of warfare, which would preclude any distinction between civilian and 
military targets . . . are prohibited." 

48. Draft Resolution, supra note 7. 

49. Office of the General Counsel, Department of Defense, An Assessment of International 
Legal Issues in Information Operations (Nov. 1999) [hereinafter DoD/GC Paper]. The paper is 
appended to this volume as the Appendix. 

50. G.A. Res. 53/70 (Jan. 4, 1999), Developments in the field of information and 
telecommunications in the context of international security, UN Doc. A/RES/53/70. 

51. E.g., "current U.S. efforts to improve mutual legal assistance and extradition agreements 
should continue to receive strong emphasis. Another idea that might prove fruitful is to negotiate a 
treaty to suppress information terrorism. ..." DoD/GC Paper, supra note 49, at Appendix. This 
thought is also reflected in the final preambular paragraph of the resolution adopted (note 51): 
" Considering that it is necessary to prevent the misuse or exploitation of information resources or 
technologies for criminal or terrorist purposes." This provision is repeated in a resolution of the 
same name adopted the following year, UN Doc. A/54/558 which is essentially the same as the 
previous one, G.A. Res. 54/49 (Dec. 1, 1999) UN Doc. A/54/558. 

52. See supra notes 9 & 51. Paragraphs 2, 3, and 7 of the 1999 resolution read as follows: 

Noting that considerable progress has been achieved in developing and applying the latest 
information technologies and means of communication; 

Affirming that it sees in this process the broadest positive opportunities for the further 
development of civilisation, the expansion of opportunities for co-operation for the 
common good of all States, the enhancement of the creative potential of mankind, and 
additional improvements in the circulation of information in the global community; 

Expressing concern that these technologies and means can potentially be used for purposes that 
are inconsistent with the objectives of maintaining international stability and security and 
may adversely affect the security of States. 

53. Id., both resolutions operative para. 2(c). 



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Attack and the Jus in Bello 



Michael N. Schmitt 



D: 



espite ongoing debates about the existence, or lack thereof, of a "revo- 
lution in military affairs," it is undeniable that 21 st century warfare will 
differ dramatically from that which characterized the 20. Perhaps most re- 
markable will be the maturation of "information warfare" as a tool of combat. 1 
It will challenge existing warfighting doctrine, necessitate a reconceptualization 
of the battlespace, and expand the available methods and means of warfare. Of 
particular note will be the impact of information warfare on the principles of in- 
ternational humanitarian law . . . and vice versa. 

Information warfare (IW), in particular computer network attack, has been 
described in detail in this volume and elsewhere. Therefore, only a brief expla- 
nation of the typology employed in this chapter is necessary. Information war- 
fare is a subset of information operations (IO), i.e., "actions taken to affect 
adversary information and information systems while defending one's own in- 
formation and information systems." 2 Such operations encompass virtually any 
nonconsensual measures intended to discover, alter, destroy, disrupt, or transfer 
data stored in a computer, manipulated by a computer, or transmitted through a 
computer. They can occur in peacetime, during crises, or at the strategic, opera- 
tional, or tactical levels of armed conflict. 3 Information operations are distin- 
guished by that which is affected or protected — information. 



Michael N. Schmitt 



IW is narrower. It consists of "information operations conducted during 
time of crisis or conflict to achieve or promote specific objectives over a spe- 
cific adversary or adversaries." 4 Thus, information warfare is differentiated 
from other operations by the context in which it occurs — crisis or conflict. As 
an example, routine peacetime espionage is an example of an information op- 
eration that does not constitute information warfare unless conducted during a 
crisis or hostilities. 

Computer network attacks (CNA), which may amount to IW or merely IO, 
are "operations to disrupt, deny, degrade, or destroy information resident in 
computers and computer networks, or the computers and networks them- 
selves." 5 The essence of CNA is that, regardless of the context in which it oc- 
curs, a data stream is relied on to execute the attack. 6 Thus, the means used set 
CNA apart from other forms of IO. These means vary widely. They include, 
inter alia, gaining access to a computer system so as to acquire control over it, 
transmitting viruses to destroy or alter data, using logic bombs that sit idle in a 
system until triggered on the occasion of a particular occurrence or at a set time, 
inserting worms that reproduce themselves upon entry to a system thereby over- 
loading the network, and employing sniffers to monitor and/or seize data. 

This chapter addresses the use of CNA during international armed conflict and 
is limited to consideration of the jus in hello, that body of law addressing what 
conduct is permissible, or impermissible, during hostilities, irrespective of the le- 
gality of the initial resort to force by the belligerents. 7 Discussion therefore cen- 
ters on the use of CNA in the context of "State-on-State" armed conflict. 
Moreover, the chapter is an effort to explore the lex lata, rather than an exercise 
in considering lexferenda. While setting forth lexferenda is an especially worthy 
project as the nature of warfare evolves, 8 the goal here is simply to analyze the 
applicability of existing humanitarian law to computer network attack, and 
identify any prescriptive lacunae that may exist therein. 

Applicability of Humanitarian Law to CNA 

The threshold question is whether computer network attack is even subject 
to humanitarian law. To begin with, there is no provision in any humanitarian 
law instrument that directly addresses CNA, or, for that matter, IW or IO; this 
might suggest that CNA is as yet unregulated during armed conflict. Addi- 
tionally, it could be argued that the development and employment ot CNA 
post-dates existing treaty law, and thus, having not been within the contem- 
plation of the Parties to those instruments, is exempt from the coverage 
thereof. A third possible argument for inapplicability is that humanitarian law 

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Wired Warfare: Computer Network Attack and the Jus in Bello 



is designed for methods and means that are kinetic in nature; since there is little 
that is "physical" in CNA, attacks by computers fall outside the scope of hu- 
manitarian law. 9 Restated, humanitarian law applies to armed conflict, and 
computer network attack is not "armed." 

The first two possibilities are easily dispensed with. The fact that existing con- 
ventions are silent on CNA is of little significance. First, the Martens clause, a 
well-accepted principle of humanitarian law, provides that whenever a situation 
is not covered by an international agreement, "civilians and combatants remain 
under the protection and authority of the principles of international law derived 
from established custom, from the principles of humanity and from the dictates 
of public conscience." 10 By this norm, all occurrences during armed conflict are 
subject to application of humanitarian law principles; there is no lawless void. 
The acceptance of "international custom" as a source of law in Article 38 of the 
Statute of the International Court of Justice also demonstrates the fallacy of any 
contention of inapplicability based on the absence of specific lex scripta. n 

Arguments focusing on the fact that CNA post-dates present prescriptive in- 
struments are similarly fallacious. Precisely this line of reasoning was presented 
to the International Court of Justice in Legality of the Threat or Use of Nuclear 
Weapons. In its advisory opinion, the court summarily rejected the assertion that 
because humanitarian "principles and rules had evolved prior to the invention of 
nuclear weapons," humanitarian law was inapplicable to them. As the court 
noted, "[i]n the view of the vast majority of States as well as writers there can be 
no doubt as to the applicability of humanitarian law to nuclear weapons." 12 
There being no reason to distinguish nuclear from computer weapons, at least 
on the basis of when they were developed vis-a-vis the entry into force of rele- 
vant humanitarian law norms, the same conclusion applies to CNA. Further- 
more, a review of new weapons and weapon systems for compliance with 
humanitarian law is a legal, and often a policy, requirement. 13 Obviously, this 
would not be so if pre-existing law were inapplicable, ab initio, to nascent meth- 
ods and means of warfare. 

This analysis leaves only the third argument for inapplicability of humanitar- 
ian law to computer network attack — that it is not armed conflict, at least not in 
the absence of conventional hostilities. In exploring this prospect one might re- 
flexively reach, as some have, for the UN Charter. 14 Article 2(4) of that constitu- 
tive instrument proscribes the "use of force," whereas Article 51 allows for 
forceful action in self-defense in the face of an "armed attack." If an act consti- 
tutes a "use of force" or an "armed attack" would it not logically be subject to the 
laws of "armed conflict," i.e., humanitarian law? If so, all that need be done is to 
determine what actions amount to a use of force or constitute an armed attack. 15 



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Michael N. Schmitt 



Such an analysis confuses the jus ad bellum with the jus in bello. Articles 2(4) 
and 51 , together with Chapter VII of the Charter, are the key prescriptive norms 
of the jus ad bellum. They govern when it is legitimate under international law (or 
at least Charter law) to resort to force, either as a tool of national policy or in the 
face of another State's decision to do so in pursuit of its own national interests. A 
State that has unlawfully resorted to force may subsequently carry out its opera- 
tions in compliance with the jus in bello, which, as mentioned supra, governs 
the actual conduct of hostilities by the parties. For instance, during the 
Falklands/Malvinas conflict Argentina wrongfully invaded British territory, but 
generally abided by the rules of warfare. Similarly, many commentators urge 
that Operation ALLIED FORCE, NATO's 1999 Kosovo bombing campaign, 
violated the jus ad bellum, but was conducted in substantial compliance with the 
laws governing armed conflict. 16 Conversely, a State (or its military) that law- 
fully resorts to force may subsequently violate humanitarian law principles. As an 
example, it seems clear that Russia is entitled to maintain order in Chechnya; but 
it is equally clear that in doing so its forces have regularly violated both the law of 
non-international armed conflict and human rights law. 17 The point is that the 
jus ad bellum and jus in bello are normatively distinct. Professor Leslie Green has 
very pragmatically noted this distinction and its relevance to military personnel: 

Members of the armed forces are not concerned with the manner in which a 
conflict begins, nor whether it is legal or illegal. So far as they are concerned, the 
law of armed conflict comes into operation and they must abide by it from the 
moment that hostilities begin and they are required to participate therein. 18 

The task at hand, therefore, is to query when "hostilities" have begun. 
Tautologically, the answer is that hostilities commence once humanitarian law 
applies. Common Article 2 to the four 1949 Geneva Conventions provides that 
the conventions apply, aside from specific provisions that pertain in peacetime, 
"to all cases of declared war or of any other armed conflict which may arise be- 
tween two or more of the High Contracting Parties, even if the state of war is not 
recognized by one of them." 19 The 1977 Protocol Additional I, which, like the 
conventions pertains to international armed conflict, adopts the same "armed 
conflict" standard, one that has become an accepted customary law threshold for 
humanitarian law. 20 The fact that the 1977 Protocol Additional II also embraces 
the term "armed conflict," 21 albeit in the context of «o//-international armed 
conflict, demonstrates that armed conflict is a condition determined by its na- 
ture, rather than its participants, 22 location, 23 or, as was formerly the case with 
"war," declaration of the belligerents. 24 

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Wired Warfare: Computer Network Attack and the Jus in Bello 



It seems relatively clear, then, that humanitarian law is activated through the 
commencement of armed conflict. But what is armed conflict? Commentaries 
published by the International Committee of the Red Cross to the 1949 Geneva 
Conventions and the 1977 Protocols Additional take a very expansive approach 
towards the meaning of the term. The former define armed conflict as "[a]ny 
difference arising between two States and leading to the intervention of armed 
forces . . . even if one of the Parties denies the existence of a state of war. It makes 
no difference how long the conflict lasts, or how much slaughter takes place." 25 
Similarly, Protocol Additional I's commentary provides that "humanitarian 
law . . . covers any dispute between two States involving the use of their armed 
forces. Neither the duration of the conflict, nor its intensity, play a role. . . ." 26 
Protocol Additional II's commentary describes armed conflict as "the existence 
of open hostilities between armed forces which are organized to a greater or lesser de- 
gree." 27 The sine qua non in all three cases is commitment of armed forces. 

But a dispute or difference resulting in the engagement of armed forces can- 
not be the sole criterion. Military forces are used on a regular basis against adver- 
saries without necessarily producing a state of armed conflict — consider aerial 
reconnaissance/surveillance operations as just one example. Further, it is now 
generally accepted that isolated incidents such as border clashes or small-scale 
raids do not rise to the level of armed conflict as that term is employed in human- 
itarian law. 28 Accordingly, State practice, supplemented by the writings of pub- 
licists, illustrates that Protocol Additional I's dismissal of intensity and duration 
has proven slightly overstated. 

Instead, the reference to armed forces is more logically understood as a form 
of prescriptive shorthand for activity of a particular nature and intensity. At the 
time the relevant instruments were drafted, armed forces were the entities that 
conducted the contemplated activity at the requisite level of intensity; by focus- 
ing on the armed forces, the intended ends were achieved. Restated, the rele- 
vant provisions of the conventions and their commentaries were actor-based 
because citing the actors engaged in the undesirable conduct — armed 
forces — was, at the time, a convenient and reliable method for regulating it. 

And what was that conduct? The logical answer is found in the underlying 
purposes of humanitarian law. A review of its instruments and principles 
makes clear that protecting individuals who are not involved in the hostilities 
directly, as well as their property, lies at their core. 29 Most notably, protected 
entities include civilians and civilian objects, as well as those who are hors de 
combat (e.g., wounded or captured personnel) or provide humanitarian services 
(e.g., medical personnel). As for the protection they are entitled to, it is usually 
framed in terms of injury or death or, in the case of property, damage or 

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Michael N. Schmitt 



destruction. These Geneva law purposes are complemented by Hague law 
norms intended to limit suffering generally through restrictions on certain 
weaponry and methods of warfare. 30 

This excessively abbreviated summarization of humanitarian law's funda- 
mental purposes elucidates the term armed conflict. Armed conflict occurs 
when a group takes measures that injure, kill, damage, or destroy. Also included 
are actions intended to cause such results or in which they are the foreseeable 
consequences thereof. Because the issue is the jus in hello rather than ad helium, 
the motivation underlying the actions is irrelevant. So too is their wrongfulness 
or legitimacy. Thus, for example, the party that commences the armed conflict 
by committing such acts may be acting in legitimate anticipatory (or intercep- 
tive) self-defense; nevertheless, as long as the actions were intended to injure, 
kill, damage, or destroy, humanitarian law governs them. It should be noted that 
given the current weight of opinion, actions that are sporadic or isolated in 
nature would not suffice. Additionally, because the issue is the law applicable to 
international armed conflict, the relevant actions must be attributable to a 
State. 31 

Returning to the topic at hand, and quite aside from a d helium issues, humani- 
tarian law principles apply whenever computer network attacks can be ascribed 
to a State, are more than merely sporadic and isolated incidents, and are either 
intended to cause injury, death, damage, or destruction (and analogous effects), 
or such consequences are foreseeable. This is so even though classic armed force 
is not being employed. By this standard, a computer network attack on a large 
airport's air traffic control system by agents of another State would implicate hu- 
manitarian law. So too would an attack intended to destroy oil pipelines by surg- 
ing oil through them after taking control of computers governing flow, 32 
causing the meltdown of a nuclear reactor by manipulation of its computerized 
nerve center, or using computers to trigger a release of toxic chemicals from pro- 
duction and storage facilities. On the other hand, humanitarian law would not 
pertain to disrupting a university intranet, downloading financial records, shut- 
ting down Internet access temporarily, or conducting cyber espionage because, 
even if part of a regular campaign of similar acts, if the foreseeable consequences 
would not include injury, death, damage, or destruction. 

It should be apparent that, given advances in methods and means of warfare, 
especially information warfare, it is no longer sufficient to apply an actor-based 
threshold for application of humanitarian law; instead, a consequence-based 
one is more appropriate. This is hardly a jurisprudential epiphany. No one 
would deny, for instance, that biological or chemical warfare (which does not 
involve delivery by kinetic weapons) is subject to humanitarian law. A 

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Wired Warfare: Computer Network Attack and the Jus in Bello 



consequence-based threshold is also supported by the fact that once armed 
conflict has commenced (and except for prohibitions relevant to particular 
weapons), the means by which injury, death, damage or destruction are pro- 
duced have no bearing on the legality of the causal act. Intentionally targeting a 
civilian or other protected persons or objects is unlawful irrespective of the 
method or means used. Starvation, suffocation, beating, shooting, bombing, 
even cyber attack — all are subject to humanitarian law based on the fact that a 
particular consequence results. That this is so counters any assertion that, 
standing alone, cyber attacks are not subject to humanitarian law because they 
are not "armed" force. On the contrary, they may or may not be, depending 
on their nature and likely consequences. 

Computer Network Attack Targets 

As has been discussed, computer network attacks are subject to humanitarian 
law if they are part and parcel of either a classic conflict or a "cyber war" in which 
injury, death, damage, or destruction are intended or foreseeable. This being so, 
it is necessary to consider the targets against which computer network attacks 
may be directed. 

A useful starting point is to frame the conduct that is subject to the prescrip- 
tive norms governing targeting. Because most relevant Protocol Additional I 
provisions articulate standards applicable to Parties and non-Parties (as a restate- 
ment of binding customary law) alike, that instrument serves as an apt point of 
departure. 33 Article 48, the basic rule governing the protection of the civilian 
population, provides that "Parties to the conflict . . . shall direct their operations 
only against military objectives." 34 On its face, Article 48 would seem to rule out 
any military operation, including CNA, directed against other than purely mili- 
tary objectives. In fact, it does not. In subsequent articles, proscriptions are rou- 
tinely expressed in terms of "attacks." Thus, "the civilian population as such, as 
well as individual civilians, shall not be the object of attack" 35 ; "civilian objects 
shall not be the object of attack" 36 ; "indiscriminate attacks are forbidden" 37 ; "at- 
tacks shall be limited strictly to military objectives" 38 ; and so forth. The term is 
expressly defined in Article 49: "'Attacks' means acts of violence against the ad- 
versary, whether in offence or in defence." As a general matter then, the prohi- 
bition is not so much on targeting non-military objectives as it is on attacking 
them, specifically through the use of violence. This interpretation is supported 
by the text of Article 51, which sets forth the general principle that the "civilian 
population and individual civilians shall enjoy general protection against dangers 
arising from military operations," and which prohibits "acts or threats of violence 

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Michael N. Schmitt 



the primary purpose of which is to spread terror among the civilian popula- 
tion," 39 as well as the commentary to Article 48, which notes that "the word 
'operation' should be understood in the context of the whole of the Section; it 
refers to military operations during which violence is used." 40 

In light of this interpretation, does computer network attack fall outside the 
ambit of "attacks" because it does not employ violence? No, and for precisely 
the same reason that armed attacks can include cyber attacks. "Attacks" is a term 
of prescriptive shorthand intended to address specific consequences. It is clear 
that what the relevant provisions hope to accomplish is shielding protected indi- 
viduals from injury or death and protected objects from damage or destruction. 
To the extent the term "violence" is explicative, it must be considered in the 
sense of violent consequences rather than violent acts. Significant human physical 
or mental suffering 41 is logically included in the concept of injury; permanent 
loss of assets, for instance money, stock, etc., directly transferable into tangible 
property likewise comprises damage or destruction. The point is that inconve- 
nience, harassment, or mere diminishment in quality of life does not suffice; hu- 
man suffering is the requisite criterion. As an example, a major disruption of the 
stock market or banking system might effectively collapse the economy and re- 
sult in widespread unemployment, hunger, mental anguish, etc., a reality tragi- 
cally demonstrated during the Depression of the 1930s. If it did cause this level of 
suffering, the CNA would constitute an attack, as that term is understood in hu- 
manitarian law. 

Other articles within the section sustain this reading. For instance, the rules of 
proportionality speak of "loss of civilian life, injury to civilians, damage to civil- 
ians objects, or a combination thereof," 42 those relating to protection of the en- 
vironment refer to "widespread, long-term, and severe damage," 43 and the 
protection of dams, dykes, and nuclear electrical generating stations is framed in 
terms of "severe losses among the civilian population." 44 Furthermore, during 
the negotiation of Protocol Additional I, the issue of whether laying landmines 
constituted an attack arose. Most agreed that it did because "there is an attack 
whenever a person is directly endangered by a mine laid." 45 By analogy, a com- 
puter network attack which foreseeably endangers protected persons or prop- 
erty would amount to an attack. 

Return now to Article 48. In the context of computer network attack, and as 
a general rule (various other specific prohibitions are discussed infra), the article 
would prohibit those CNA operations directed against non-military objectives 
that are intended to, or would foreseeably, cause injury, death, damage, or de- 
struction. Unless otherwise prohibited by specific provisions of humanitarian 
law, CNA operations unlikely to result in the aforementioned consequences are 

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Wired Warfare: Computer Network Attack and the Jus in Bello 



permissible against non-military objectives, such as the population. 46 As a result 
of this distinction, the need to carefully assess whether or not an information 
warfare operation is or is not an "attack" is greatly heightened. In the past, analy- 
sis of this matter approximated a res ipsa loquitor approach. However, CNA is 
much more ambiguous than traditional military operations, thereby demanding 
a more challenging consequence-based consideration. 

While CNA does dramatically expand the possibilities for "targeting" (but 
not attacking) non-military objectives, it is unfair to characterize this as a weak- 
ening of the prescriptive architecture. Instead, it simply represents an expansion 
of permissible methods and means resulting from advances in technology; exist- 
ing norms remain intact. Recall, for example, that psychological operations di- 
rected against the civilian population that cause no physical harm are entirely 
permissible, so long as they are not intended to terrorize. 47 This is so whether the 
motivation for the operations is military in nature or not. Nevertheless, although 
the objective regime is a constant, the advent of CNA reveals a normative lacuna 
that, unless filled, will inevitably result in an expansion of war's impact on the ci- 
vilian population. 

Assuming a CNA operation is an "attack," what can be targeted? Ana- 
lytically, potential targets can be classified into three broad categories: 1) com- 
batants and military objectives; 2) civilians and civilian objects; and 3) dual-use 
objects. Moreover, particular types of potential targets enjoy specific protection. 
It is useful to address each grouping separately. 

Combatants and military objectives: Combatants and military objectives are by 
nature valid targets and may be directly attacked as long as the method used, as 
discussed in the next section, is consistent with humanitarian law restrictions. 
Those who plan or decide on attacks have an affirmative duty to "do everything 
feasible" to verify that intended targets are legitimate, i.e., that they do not enjoy 
immunity from attack under humanitarian law. 48 

A combatant is a member of the armed forces other than medical personnel 
and chaplains; armed forces include "all organized armed forces, groups and 
units which are under a command responsible to [a Party to the conflict] for the 
conduct of its subordinates. . . . [They must] be subject to an internal disciplinary 
system which, inter alia, shall enforce compliance with the rules of international 
law applicable in armed conflict." 49 Directing computer network attacks against 
combatants, for instance by causing a military air traffic control system to trans- 
mit false navigational information in order to cause a military troop transport to 
crash, is clearly permissible. 

Military objectives are defined in Article 52 of Protocol Additional I as "those 
objects which by their nature, location, purpose or use make an effective 

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Michael N. Schmitt 



contribution to military action and whose total or partial destruction, capture or 
neutralization, in the circumstances ruling at the time, offers a definite advan- 
tage." 50 Military equipment and facilities, other than medical and religious 
items, are clearly military objectives, and thereby subject to direct computer net- 
work attack. However, determining which objects are military objectives 
beyond these obvious exemplars is often difficult. 31 The problem lies in ascer- 
taining the required nexus between the object to be attacked and military 
operations. 

The crux of the dilemma is interpretation of the terms "effective" and "defi- 
nite." Some, such as the International Committee of the Red Cross, define 
them very narrowly. In the ICRC commentary to the protocol, effective con- 
tribution includes objects "directly used by the armed forces" (e.g., weapons and 
equipment), locations of "special importance for military operations" (e.g., 
bridges), and objects intended for use or being used for military purposes. 32 As to 
"definite military advantage," the commentary excludes attacks that offer only a 
"potential or indeterminate" advantage. 53 By contrast, the United States, which 
does not dispute the wording of the definition, would include economic targets 
that "indirectly but effectively support and sustain the enemy's war-fighting ca- 
pability," a particularly expansive interpretation. 04 

This difference has interesting implications for computer network attack. 
Can a banking system be attacked because wealth underpins a military's 
sustainability? What about the ministry responsible for taxation? The stock market? 
Are attacks on brokerage firms acceptable because they will undermine willing- 
ness to invest in the economy? If a country disproportionately relies on a particu- 
lar industry to provide export income (e.g., oil), can computer network attack 
be used to disrupt production and distribution? The issue of striking economic 
targets is a particularly acute one because the operation of most is computer in- 
tense in nature, and thereby very appealing to information warfare targeteers. 

The threshold issue, recalling the discussion supra, is whether or not the attack 
would cause injury, death, damage, or destruction. Once this determination is 
made, the differing interpretations of military objective would come into play, 
in all likelihood leading to disparate results on the legitimacy of striking the tar- 
get. On the other hand, if the operation were designed to cause, e.g., mere in- 
convenience, it would not rise to the level of an attack and would thus be 
permissible regardless of the target's nexus, or lack thereof, to military opera- 
tions. For instance, if the Serbian State television station had been targeted by 
CNA rather than kinetic weapons during NATO strikes on Belgrade in April 
1999, there might well have been no consequent injury, death, damage, or de- 
struction; in that circumstance, criticism on the basis that a civilian target had 



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been hit would likely have fallen on deaf ears, thereby probably avoiding the 
negative publicity that resulted, as well as the pending litigation in the European 
Court of Human Rights. 55 

Civilians and civilian objects: Civilians are those not considered combatants, 56 
whereas a civilian object is one that is not a military objective. 57 The prohibition 
on attacking civilians and civilian objects is nearly absolute. Specifically, Proto- 
col Additional I provides: 

Article 51.2. The civilian population, as such, as well as individual civilians shall 
not be the object of attack. Acts or threats of violence the primary purpose of 
which is to spread terror among the civilian population are prohibited. 

Article 52. Civilian objects shall not be the object of attack or of reprisals. 58 

Doubts as to the character of an object or individual are to be resolved in favor 
of finding civilian status. 59 Again, in the case of computer network attack, the 
threshold question is whether or not the attack is intended to, or forseeably will, 
cause injury, death, damage, or destruction; if so, the prohibitions set forth ear- 
lier, which undeniably restate existing customary law, apply. 

Unfortunately, the norms, albeit clear on their face, are subject to interpretive 
difficulties. The differing standards for distinguishing civilian objects from mili- 
tary objectives have already been highlighted. Similar disparities surround when 
a civilian may be attacked. Protocol Additional I allows for this possibility only 
in the case of a civilian taking a "direct part in hostilities," a standard described in 
the commentary as "acts of war which by their nature or purpose are likely to 
cause actual harm to the personnel or equipment of the enemy armed forces." 60 
This is the illegal combatant problem. Some would limit civilian immunity even 
more severely by, for instance, characterizing mission-essential civilians work- 
ing at a base during hostilities, though not engaged directly in acts of war, as le- 
gitimate targets. 61 

In the context of information operations, the civilian issue is an important 
one. Some countries have elected to contract out information warfare func- 
tions, whether those functions involve the maintenance of assets or the conduct 
of operations. Moreover, computer network attack is a function that may be 
tasked to government agencies other than the military. In the event civilian con- 
tractors or non-military personnel are in a support role that is essential to the 
conduct of operations, for instance maintaining CNA equipment, by the latter 
interpretation they would be directly targetable. Further, because they are valid 
targets, any injury caused them would not be calculated when assessing whether 

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an attack is proportional (see discussion infra). On the other hand, narrowly ap- 
plying the "direct part in hostilities" standard would preserve the protection 
they enjoy as civilians, though if captured they would be entitled to prisoner of 
war status as persons "accompanying the armed forces." 62 

Should civilians engage in computer network attack themselves, the problem 
becomes more complex. If the CNA results, or foreseeably could result, in in- 
jury, death, damage, or destruction, then the "perpetrators" would be illegal 
combatants. This status attaches because they have taken a direct part in hostili- 
ties without complying with the criteria for characterization as a combatant. As 
illegal combatants, they may be directly attacked, any injury suffered by them 
would be irrelevant in a proportionality calculation, and in the event of their 
capture they would not be entitled to prisoner of war status. 

By contrast, if the civilians involved were conducting computer network op- 
erations that did not rise to the level of "attacks," they would not be illegal com- 
batants because they would have committed no "acts of war that by their nature 
or purpose are likely to cause actual harm to the personnel or equipment of the 
enemy armed forces." Their civilian status and its corresponding protections 
would remain intact. Nevertheless, as with support personnel, if captured while 
attached to a military unit and accompanying that unit, these civilians would be 
classed as prisoners of war. 63 Of course, the facility and equipment being used to 
conduct the operations might well be valid military objectives and, as a result, be 
subject to attack; but the operators themselves could not be directly attacked. 

As should be apparent, the use of civilians, whether contractors or govern- 
ment employees, is fraught with legal pitfalls. Clearly, a prudent approach would 
be to employ military personnel for information warfare purposes. 

Dual-use objects: A dual-use object is one that serves both civilian and military 
purposes. Examples of common dual-use objects (or objectives) include air- 
ports, rail lines, electrical systems, communications systems, factories that pro- 
duce items for both the military and the civilian population, and satellites such as 
INTELSAT, EUROSAT and ARABSAT. If an object is being used for military 
purposes, it is a military objective vulnerable to attack, including computer net- 
work attack. This is true even if the military purposes are secondary to the civil- 
ian ones. 

Several caveats are in order. First, whether or not an object is a military objec- 
tive may turn on whether the narrow or broad definition of the term, a matter 
discussed supra, is used. Second, whether an object is dual-use, and therefore a 
military objective, will depend on the nature of the specific conflict. An airfield 
may be utilized for logistics purposes in one conflict, but serve no military func- 
tion in another. Third, an object that has the potential for military usage, but is 



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presently solely used for civilian purposes, is a military objective if the likelihood 
of use is reasonable and not remote in the context of the particular conflict un- 
derway. Finally, dual-use objects must be carefully measured against the require- 
ments of discrimination and proportionality, discussed infra, because by 
definition an attack thereon risks collateral damage and incidental injury to civil- 
ians or civilian objects. 

Specifically protected objects: In addition to the general rules regarding the protec- 
tion of the civilian population, certain objects enjoy specific protection. A contro- 
versial category of specially protected objects is dams, dikes, and nuclear electrical 
generating stations. Because of their reliance on computer and computer net- 
works, such facilities are especially vulnerable to CNA. Article 56 of Protocol Ad- 
ditional I, a provision opposed by the United States, forbids an attack on these 
facilities if the attack might "cause the release of dangerous forces [e.g., water or 
radioactivity] and consequent severe losses among the civilian population." 64 This 
prohibition applies even if they are military objectives. Interestingly, CNA offers a 
fairly reliable means of neutralizing such facilities without risking the release of 
dangerous forces, a difficult task when using kinetic weapons. 

Conducting attacks that starve the civilian population or otherwise deny it 
"indispensable objects," 65 even if enemy armed forces are the intended "vic- 
tims," is prohibited. 66 Indispensable objects include such items as foodstuffs, 
crops, livestock, or drinking water. Applying this restriction, computer net- 
works attacks against, for instance, a food storage and distribution system or a 
water treatment plant serving the civilian population would be impermissible 
even if military forces also rely on them. 

Protocol Additional I further prohibits military operations likely to cause 
widespread, long-term, and severe damage to the environment, 67 although the 
United States does not recognize the provision as a restatement of customary 
law. Computer network attacks might conceivably cause such devastation. An 
attack on a nuclear reactor could result in a meltdown of its core and consequent 
release of radioactivity. Similarly, CNA could be used to release chemicals from 
a storage or production facility or rupture a major oil pipeline. Many other pos- 
sibilities for the causation of environmental damage through CNA exist. It is im- 
portant to note that the prohibition applies regardless of whether or not the 
attack is targeted against a valid military objective and even if it complies with 
the principle of proportionality. Once the requisite quantum of damage is ex- 
pected to occur, the operation is prohibited. 

There are a number of other objects, persons, and activities that enjoy special 
protected status, and which are susceptible to computer network attack, but 
which do not present unique CNA opportunities or challenges. For example, 

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military and civilian medical units and supplies are exempt from attack unless be- 
ing used for military purposes; 68 the same is generally true of medical transport. 69 
So too are cultural objects, places of worship, 70 and civil defense shelters, facili- 
ties, and material. 71 Additionally, humanitarian relief activities must not be in- 
terfered with. 72 By these prohibitions, for example, a computer network attack 
to alter blood type information in a hospital's data bank, deny power to a bomb 
shelter, or misroute humanitarian relief supplies would all be unlawful. Of 
course, misuse of protected items or locations for military purposes renders them 
valid military objectives that may be attacked. 

Finally, there are limitations on striking certain objects or individuals in repri- 
sal, including reprisals by computer network attack. Reprisals are otherwise un- 
lawful actions taken during armed conflict in response to an adversary's own 
unlawful conduct. They must be designed solely to cause the adversary to act 
lawfully, be preceded by a warning (if feasible), be proportionate to the adver- 
sary's violation, and cease as soon as the other side complies with the legal limita- 
tions on its conduct. The right to conduct reprisals has been severely restricted in 
treaty law, much of which expresses customary law. There are specific prohibi- 
tions on reprisals conducted against civilians; prisoners of war; the wounded, 
sick, and shipwrecked; medical and religious personnel and their equipment; 
protected buildings, equipment, and vessels; civilian objects; cultural objects; 
objects indispensable for the survival of the civilian population; works contain- 
ing dangerous forces; and the environment. 73 Essentially, this leaves only com- 
batants and military objectives subject to reprisals. Of course, in most cases a 
computer network attack conducted against them would be lawful at any rate. 74 

In fairness, it should be acknowledged that certain countries argue that the 
Protocol Additional I restrictions on reprisals fail to reflect customary law. The 
United States, while accepting that most reprisals against civilians would be in- 
appropriate (and illegitimate), asserts that the absolute prohibition thereon "re- 
moves a significant deterrent that presently protects civilians and other war 
victims on all sides of the conflict." 73 The United Kingdom issued a reservation 
on precisely the same point when it became a Party to the protocol. 76 For these 
and other countries that have adopted this position, reprisatory computer net- 
work attacks are issues of policy, not law. 

Limits on Striking Legitimate Targets 

The core prescriptions on striking legitimate targets are based in the principle 
of discrimination. 77 It is this principle which most clearly expresses humanitar- 
ian law's balancing of State-centric interests in resorting to force against the 

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more broadly based humanitarian interest in shielding non-participants from the 
effects of what is, at best, an unfortunate necessity. 

Discrimination is bifurcated in nature. Applied to weapons, it limits the use of 
those that are incapable of distinguishing between combatants and military ob- 
jectives on the one hand and civilians, civilian objects, and other protected enti- 
ties on the other. Applied to tactics and the use of weapons, it requires an effort 
to distinguish between the two categories when conducting military operations. 
Protocol Additional I articulates this difference in Article 51.4: 

Indiscriminate attacks are: (a) those which are not directed at a specific military 
objective; (b) those which employ a method or means of combat which cannot be 
directed at a specific military objective; or (c) those which employ a method or 
means of combat the effects of which cannot be limited as required by this 
Protocol; and consequently, in each such case, are of a nature to strike military 
objectives and civilians or civilian objects without distinction. 

Subparagraph (a) refers to indiscriminate use, whereas (b) and (c) describe 
indiscriminate weapons. The indiscriminate use aspect of discrimination consists 
of three related components — distinction, proportionality, and minimizing 
collateral damage and incidental injury. 78 

Indiscriminate weapons: Computer network attacks are mounted by a weapon 
system consisting of a computer, computer code, and a means by which that 
code is transmitted. Obviously, the computer itself is not indiscriminate for it 
can very discretely send code to particular computers and networks. The send- 
ing of e-mail is an apt example. By contrast, code can be written that is very, 
perhaps intentionally, indiscriminate. The classic example is a virus that passes 
from computer to computer free from the control of its originator. Because the 
code, even if an uncontrollable virus, can be targeted at particular military objec- 
tives, it is not indiscriminate on the basis that it cannot be directed. However, 
such code may be indiscriminate on the ground that its effects cannot be limited. 
In many cases, once viral code is launched against a target computer or network, 
the attacker will have no way to limit its subsequent retransmission. This may be 
true even in a closed network, for the virus could, as an example, be transferred 
into it by diskette. Simply put, malicious code likely to be uncontrollably spread 
throughout civilian systems is prohibited as an indiscriminate weapon. 

One must be careful not to overstate the restriction. Note that Article 51.4 
cites "methods and means of combat." A means of combat is defined in Proto- 
col Additional I's commentary as a "weapon," whereas a method of combat is 
the way a weapon is used. 79 The plain meaning of "weapon" is something that 

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Michael N. Schmitt 



can be used to attack an adversary. Drawing on the analysis supra regarding the 
humanitarian law term "attacks," computer code is only part of a weapon sys- 
tem when it can cause the effects encompassed in that term — injury, death, 
damage, and destruction (including related effects like severe mental suffering, 
terror, suffering, etc.). In the event it cannot, it is not part of a weapon system, 
and thus would not be prohibited, at least not on the ground that it is 
indiscriminate. 

Distinction: The principle of distinction, unquestionably part of customary hu- 
manitarian law, is set forth in Protocol Additional I, Article 48: "[T]he Parties to 
the conflict shall at all times distinguish between the civilian population and 
combatants and between civilian objects and military objectives and accordingly 
shall direct their operations only against military objectives." Whereas the pro- 
hibition on attacking civilians directly rendered a specific category of potential 
targets off-limits, the distinction requirement extends protection to cases in 
which an attack may not be directed against civilian or civilian objectives specifi- 
cally, but in which there is a high likelihood of striking them nonetheless. An ex- 
ample would be firing a weapon, though capable of being aimed, blindly. 

This is a particularly relevant prohibition in the context of computer network 
attack. For example, it would embrace situations where it is possible to dis- 
cretely target a military objective through a particular means of CNA, but in- 
stead a broad attack likely to affect civilian systems is launched. Such an attack 
would be analogous to the Iraqi SCUD attacks against Saudi and Israeli popula- 
tion centers during the 1990—91 Persian Gulf War. 80 The SCUD is not an in- 
herently indiscriminate weapon. Indeed, it is easily capable of being aimed with 
sufficient accuracy against, for instance, military formations in the desert. How- 
ever, use of SCUDS against population centers was indiscriminate even if the 
Iraqi intent was to strike military objectives situated therein; the likelihood of 
striking protected persons and objects so outweighed that of hitting legitimate 
targets that the use was improper. Given the interconnectivity of computer sys- 
tems today, computer network attacks could readily be launched in an analo- 
gous fashion. 

Proportionality: Scienter distinguishes the principle of proportionality from that 
of distinction. Distinction limits direct attacks on protected persons or objects 
and those in which there is culpable disregard for civilian consequences. By con- 
trast, proportionality governs those situations in which harm to protected per- 
sons or objects is the foreseeable consequence of an attack, but not its intended 
purpose. The principle is most often violated (sometimes in an unintended but 
culpably negligent fashion) as a result of: 1) lack of sufficient knowledge or un- 
derstanding of what is being attacked; 2) an inability to surgically craft the 



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amount of "force" being applied against a target; and 3) the inability to ensure 
the weapon strikes precisely the right aim point. 81 All three pitfalls could surface 
in the context of computer network attack. 

As set forth in Protocol Additional I, an attack is indiscriminate as violative of 
the principle of proportionality when it "may be expected to cause incidental 
loss of civilian life, injury to civilians, damage to civilian objects, or a combina- 
tion thereof, which would be excessive in relation to the concrete and direct 
military advantage anticipated." 82 A concrete and direct advantage is "substan- 
tial and relatively close [;] . . . advantages which are hardly perceptible and those 
which would only appear in the long term should be disregarded." 83 Moreover, 
the advantage calculated is that resulting from the overall operation, not the in- 
dividual attack itself. 84 

Basically, the principle of proportionality mandates a balancing test — one that 
is especially difficult to conduct because differing entities (suffering and damage 
v. military advantage) are being compared against each other in the absence of a 
common system of valuation. How should civilian passenger lives be weighed 
against military aircraft in a computer network attack on an air traffic control sys- 
tem? How much human suffering is acceptable when shutting down an electri- 
cal grid that serves both military and civilian purposes? Can computer network 
attacks be conducted against telecommunications if they result in degrading 
emergency response services for the civilian population? Complicating matters 
is the fact that the answers to these and similar questions, assuming there are any 
"right" answers, is contextual because the military advantage resulting from an 
attack always depends on the state of hostilities at the time. 85 Acknowledging the 
difficulty involved in making these types of determinations, the Protocol Addi- 
tional I commentary notes that "[p]utting these provisions into practice . . . will 
require complete good faith on the part of the belligerents, as well as the desire to 
conform with the general principle of respect for the civilian population." 86 

Further complicating matters is the issue of reverberating effects, i.e., those 
effects not directly and immediately caused by the attack, but nevertheless the 
product thereof — it is the problem of the effects caused by the effects of an at- 
tack. The most cited example involves the attack on the Iraqi electrical grid 
during the 1991 Persian Gulf War. Although it successfully disrupted Iraqi 
command and control, the attack also denied electricity to the civilian popula- 
tion (a "first-tier" effect), thereby affecting hospitals, refrigeration, emergency 
response, etc. Similarly, when NATO struck at Yugoslavia's electrical supply 
network during Operation ALLIED FORCE, one consequence was shutting 
down drinking water pumping stations. 87 Such attacks set off "second-tier" 
suffering (a reverberating effect) of the population. Obviously, precisely the 

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Michael N. Schmitt 



same effects could have resulted had the attacks been conducted through 
CNA. Indeed, the problem of reverberating effects looms much larger in com- 
puter network than kinetic attacks due to the interconnectivity of computers, 
particularly that between military and civilian systems. 

Reverberating effects bear on proportionality analysis because they must be 
considered when balancing collateral damage and incidental injury against 
military advantage. Unfortunately, and whether reverberating or direct, it is 
difficult to assess such damage and injury when caused by computer network 
attack absent an understanding of how the computer systems involved function 
and to which other systems they are linked. Despite this obstacle, planners and 
decision-makers have an affirmative duty to attempt to avoid collateral damage 
and incidental injury whenever feasible, a duty that necessarily implies an effort 
to ascertain the resultant damage or injury from an attack. 88 Given the complex- 
ity of computer network attack, the high likelihood of an impact on civilian sys- 
tems, and the relatively low understanding of its nature and effects on the part of 
those charged with ordering the attacks, computer experts will have to be avail- 
able to assess potential collateral and incidental effects throughout the mission 
planning process. 89 Additionally, modeling and simulation, like that already 
conducted for nuclear weapons, would prove invaluable in identifying possible 
reverberating effects; conducting them prior to the outbreak of hostilities — free 
from the fog, friction, and pace of war — would be well advised. 

Minimizing collateral damage and incidental injury: Proportionality determina- 
tions establish whether a military objective may be attacked at all. However, 
even if the selected target is legitimate and the planned attack thereon would be 
proportional, the attacker has an obligation to select that method or means of 
warfare likely to cause the least collateral damage and incidental injury, all other 
things being equal (such as risk to the forces conducting the attack, likelihood of 
success, weapons inventory, etc.). 90 Additionally, whenever a choice is pre- 
sented between military objectives that can be attacked to achieve a desired 
result, the attack which risks the least collateral damage and incidental injury 
must be chosen. 91 

The availability of computer network attack actually expands the options for 
minimizing collateral damage and incidental injury. Whereas in the past physical 
destruction may have been necessary to neutralize a target's contribution to the 
enemy's efforts, now it may be possible to simply "turn it off." For instance, 
rather than bombing an airfield, air traffic control can be interrupted. The same 
is true of power production and distribution systems, communications, indus- 
trial plants, and so forth. Those who plan and execute such operations must still 
be concerned about collateral damage, incidental injury, and reverberating 

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effects (consider the Iraqi electric grid example supra), but the risks associated 
with conducting classic kinetic warfare are mitigated significantly through 
CNA. Additionally, depending on the desired result, it may be possible to sim- 
ply interrupt operation of the target. This tactic would be particularly attractive 
in the case of dual-use objectives. Consider an electrical grid. It might only be 
militarily necessary to shut the system down for a short period, for example, im- 
mediately preceding and during an assault. The system could be brought back up 
as soon as the pressing need for its interruption passed, thereby limiting the nega- 
tive effects on the civilian population. Along the same lines, because targets are 
not physically damaged, and thus do not need to be repaired or rebuilt, the civil- 
ian population's return to normalcy at the end of the conflict would be 
facilitated. 

There is, from a humanitarian point of view, one theoretical downside to the 
fact that CNA may sometimes cause less collateral damage and incidental injury 
than kinetic attacks — it might actually encourage attacks. This would be so in 
the case of an attack that could not pass the proportionality test if conducted 
kinetically, but could if accomplished by computer network attack. Should the 
CNA result in any collateral damage or incidental injury (albeit not enough to 
outweigh the resulting military advantage), the net result would be greater civil- 
ian suffering. While this is true, the better question from the humanitarian point 
of view is whether CNA causes more or less collateral damage and incidental in- 
jury overall, not merely as to a single operation. So long as the various limitations 
of the principle of discrimination are complied with, and without the benefit of a 
track record to draw on in making the assertion, it would seem that in humani- 
tarian terms computer network attack is probably a step forward. 

Perfidy: Although the core normative constraints on computer network at- 
tack derive from the principle of discrimination, several other related aspects of 
humanitarian law are implicated by this new means of warfare. One is the prohi- 
bition on perfidy. Perfidy is the feigning of protected status in order to take ad- 
vantage of an adversary. Examples include pretending to be wounded or sick, to 
enjoy non-combatant status, or to surrender, and improperly displaying symbols 
that signify protected status, such as the red cross or red crescent. Perfidy is dis- 
tinguished from ruses, which are acts intended to mislead an adversary and cause 
him to act recklessly, but which do not involve false claims of protected status. 
Ruses are lawful. 

Information warfare, including computer network attack, opens many op- 
portunities for ruses and perfidy. This is because both techniques are intended to 
convey false information. For instance, lawful ruses might include transmitting 
false data, meant to be intercepted by an adversary, regarding troop disposition 

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Michael N. Schmitt 



or movements. Alternatively, it might involve altering data in an adversary's in- 
telligence databases, sending messages to enemy headquarters purporting to be 
from subordinate units, or passing instructions to subordinate units that appear 
to be from their headquarters. 92 All such activities would be perfectly legitimate. 

On the other hand, any action intended to mislead the enemy into believing 
that one's forces enjoyed protected status in order to kill, injure, or capture the 
enemy would be illegitimate. 93 For instance, medical units and transports may 
use codes and signals established by the International Telecommunications 
Union, the International Civil Aviation Organization, and the International 
Maritime Consultative Organization to identify themselves. 94 Falsely transmit- 
ting such code/signals or, a more likely prospect in the computer network attack 
context, causing adversary systems to reflect receipt of such signals would be 
clear examples of perfidy. The Department of Defense has also opined that using 
"computer 'morphing' techniques to create an image of the enemy's chief of 
state informing his troops that an armistice or cease-fire agreement had been 
signed" would be a war crime if false. 95 

An interesting prospect would be routing a computer network attack 
through civilian systems, or otherwise feigning a civilian source. This might be 
done to later mask the source of attack or to inspire confidence in the target that 
the transmission was benign. Doing so would be prohibited both by the Proto- 
col Additional I and customary law. 96 This is a very sensible restriction because a 
response to an attack apparently originating from a civilian source could be 
kinetic in nature. 

It must be noted that the protocol's restriction on perfidy is limited to con- 
duct calculated to facilitate killing, injuring, or capturing an adversary. The 
commentary thereto notes this limitation, but suggests that "there is more to 
an international treaty than the literal reading of all the words in the document 
may suggest; it represents one step forward in the ongoing evolution in rela- 
tions between States." 97 Be that as it may, as the law stands today it would be 
permissible to disguise information warfare operations as civilian in origin if 
they were not related to killing, injuring, or capturing one's adversary. This 
standard is consistent with that employed supra regarding "armed" conflict and 
"attack." Moreover, the prohibition on misuse of protective codes and signals, 
such as those designed to identify medical facilities, are absolute, i.e., they ap- 
ply regardless of the abuser's intent. As an example, usage merely to avoid at- 
tack is forbidden. 

Civilian Shields: In theory, a computer attack might utilize a civilian net- 
work to shield itself against a response, either kinetic or through a counter- 
cyber attack. If the latter did not cause death or injury to civilians or damage 

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or destruction of protected objects, and therefore was not an "attack" in the 
humanitarian law sense, it would be permissible. On the other hand, if it might 
cause collateral damage or incidental injury, then any such effects on the civil- 
ian population would have to be considered in a proportionality analysis; civil- 
ians and civilian objects do not lose the protections of the law of armed conflict 
by the wrongful acts of others. Of course, the use of civilian shields is itself 
wrongful; 98 the party that subjects the civilian population or protected objects 
to risk by using them as shields is culpable under humanitarian law. This prin- 
ciple applies whether the attack is kinetic or computer in nature. 

Mercenaries: Since computer network attacks can amount to both armed con- 
flict and, in individual cases, an attack, restrictions on mercenaries may apply to 
those who conduct them. Mercenaries are specifically addressed in Protocol 
Additional I, although the restrictions contained therein are not customary in 
nature, a position strengthened by the absence of any mention of mercenaries in 
the Statute of the International Criminal Court. 

By Article 47 of the protocol, a mercenary is any person who: 

(a) is specially recruited locally or abroad in order to fight in an armed conflict; 

(b) does, in fact, take a direct part in the hostilities; 

(c) is motivated to take part in the hostilities essentially by the desire for private 
gain and, in fact, is promised, by or on behalf of a Party to the conflict, material 
compensation substantially in excess of that promised or paid to combatants of 
similar ranks and functions in the armed forces of that Party; 

(d) is neither a national of a Party to the conflict nor a resident of territory 
controlled by a Party to the conflict; 

(e) is not a member of the armed forces of a Party to the conflict; and 

(f) has not been sent by a State which is not a Party to the conflict on official duty as 
a member of its armed forces." 

While Protocol Additional I does not actually prohibit mercenarism, because 
they are not combatants, mercenaries are not entitled to prisoner of war status. 
Therefore, like any other noncombatant who directly engages in hostilities, they 
may be tried under the domestic law of the State that captures them. 100 

Given the complexity of conducting computer network attacks, it is quite 
conceivable that States might hire non-nationals possessing the requisite exper- 
tise to mount them. If the CNA amount to an "attack," these individuals 
would be taking a "direct part in the hostilities." Assuming they met the other 
qualifying criteria for mercenaries, the Protocol Additional I provisions would 
apply. Interestingly, there is a financial incentive to outsource CNA because in 

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Michael N. Schmitt 



many cases hiring computer attack expertise would be far more cost-effective 
than hiring conventional attack mercenaries or even acquiring weapons for 
one's own forces. 

Conclusion 

By and large, as information warfare capabilities increase, existing humanitar- 
ian prescriptive norms will suffice to maintain the protection civilians, civilian 
objects, and other protected entities enjoy. However, certain novel aspects of 
CNA do pose new and sometimes troubling quandaries. The unease over the 
use of cyber warfare during NATO's campaign against Yugoslavia in 1999 is 
compelling evidence that the question of how humanitarian law bears on CNA 
remains unsettled. 101 

First, in order to apply extant norms to CNA, it is necessary to accept vari- 
ous interpretive premises. Most important are the consequence-based inter- 
pretations of "armed conflict" and "attack." Absent such understandings, the 
applicability, and therefore adequacy, of present-day humanitarian law princi- 
ples would fall into question. Interestingly, consideration of computer net- 
work attack in the context of the jus ad bellum also leads to consequence-based 
interpretation. 102 

Second, even accepting the parameters resulting from the interpretations sug- 
gested, normative lacunae exist. Most notably, attacks against civilians and civil- 
ian objects that do not injure, kill, damage, or destroy (or otherwise produce the 
requisite level of suffering) are by and large permissible. Given that kinetic at- 
tacks usually have such effects, civilians and civilian objects enjoy broad protec- 
tion during conventional military operations. However, computer network 
attack, because it may not amount to an attack, opens up many possibilities for 
targeting otherwise protected persons and objects. The incentive for conducting 
such operations grows in relation to the extent to which the "war aims" of the 
party conducting the CNA are coercive in nature; the desire to, e.g., "turn out 
the lights" to a civilian population in order motivate it to pressure its leadership 
to take, or desist from taking, a particular course of conduct (a step suggested by 
NATO's air commander during Operation ALLIED FORCE) will grow as the 
means for doing so expand. 103 This is an especially negative reality in humanitar- 
ian terms. 

Third, and more encouraging, is the fact that CNA may make it possible to 
achieve desired military objectives with less collateral damage and incidental in- 
jury than in traditional kinetic attacks. Indeed, in certain cases, military com- 
manders will be obligated to employ their cyber assets in lieu of kinetic weapons 

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Wired Warfare: Computer Network Attack and the Jus in Bello 

when collateral and incidental effects can be limited. 104 That said, it will be criti- 
cally important to carefully analyze the effects of such operations, particularly 
their reverberating effects, when assessing an attack's compliance with the prin- 
ciple of proportionality. This will require planning, legal, and computer experts 
to operate in concert throughout the targeting cycle. 105 

Finally, much as CNA challenges existing notions of "attack," it will also test 
traditional understanding of combatant status. This results from the use of typi- 
cally civilian technology and know-how to conduct military operations via 
computer. Failure to strictly comply with the limitations on the participation of 
civilians in hostilities will inevitably lead to heightened endangerment of the ci- 
vilian population and weaken humanitarian law norms. 

So the jury remains out. While humanitarian law in its present form generally 
suffices to safeguard those it seeks to protect from the effects of computer net- 
work attack, and even though it offers the promise of periodically enhancing 
such protection, significant prescriptive fault lines do exist. Thus, as capabilities 
to conduct computer network attacks increase, both in terms of sophistication 
and availability, continued normative monitoring is absolutely essential. We 
must avoid losing sight of humanitarian principles, lest the possible in warfare 
supplant the permissible. 

Notes 

* An abbreviated version of this chapter appears in the International Review of the Red Cross 
(2002) edition commemorating the 25th anniversary of the Protocols Additional. 

1 . The United States National Military Strategy cites information superiority as a key element 
of its strategy for this century. "Information superiority is the capability to collect, process, and 
disseminate an uninterrupted flow of precise and reliable information, while exploiting and 
denying an adversary's ability to do the same." Chairman of the Joint Chiefs of Staff, National 
Military Strategy, (1997), www.dtic.mil/jcs/nms/strategy.htm, at n.p. For an excellent collection 
of essays on the nature of war in the 21 st century, see FUTURE WARFARE ANTHOLOGY (Robert 
H. Scales ed., 2000). On the specific issue of information and conflict, see STEVEN METZ, ARMED 

Conflict in the 21st Century: The Information Revolution and Post-Modern 
Warfare (2000); William A. Owens & Edward Offley, Lifting the Fog of War 
(2000); The Information Revolution and National Security (Thomas E. Copeland 
ed., 2000); david s. alberts, john j. garstka & frederick p. stein, network 
Centric Warfare: Developing and Leveraging Information Superiority (1999); 
Dan Kuehl, Strategic Information Warfare: A Concept (1999); The Changing 
Role of Information Warfare (Zalmay Khalilzad & John White eds., 1999); Dorothy 
E. Denning, Information Warfare and Security (1998); James Adams, The Next 
World War: Computers are the Weapons and the Front Line is Everywhere 
(1998). 

2. Chairman of the Joint Chiefs of Staff, Department of Defense Dictionary of Military and 
Associated Terms, Joint Publication 1-02, April 12, 2001, at 203 [hereinafter Joint Pub 1-02). 
Operations that might constitute information operations include operations security, 

209 



Michael N. Schmitt 



psychological operations, military deception, electronic warfare, physical attack, and computer 
network attack. See Chairman of the Joint Chiefs of Staff, Joint Publication 3-13, Joint Doctrine 
for Information Operations, at 1-9, (1998) [hereinafter Joint Pub 3-13]. 

3. At the strategic level, IO can be employed to "achieve national objectives by influencing 
or affecting all elements (political, military, economic, or informational) of an adversary's or 
potential adversary's national power while protecting similar friendly elements." At the 
operational level, the focus of IO is "on affecting adversary lines of communication (LOCs), 
logistics, command and control (C2), and related capabilities and activities while protecting 
similar friendly capabilities and activities." Finally, at the tactical level the objective is to affect 
adversary "information and information systems relating to C2, intelligence, and other 
information-based processes directly relating to the conduct of military operations. . . ."Joint 
Pub 3-13, supra note 2, at 1-2— 1-3. 

4. Joint Pub 1-02, supra note 2, at 203. 

5. Id. at 88. The USAF Intelligence Targeting Guide, AF Pamphlet 14-210, Feb, 1, 1998, 
para. 11.4.3, notes IW employment concepts: 

Corruption — The alteration of information content; the manipulation of data to make it 
either nonsensical or inaccurate. Destroying existing knowledge. 

Deception - A specific type of corruption; the alteration of, or adding to, information 
to portray a situation different from reality. Creating false knowledge to include 
masquerading. 

Delay — The reversible slowing of the flow of information through the system, and the 
slowing of the acquisition and dissemination of new knowledge. 

Denial — The reversible stopping of the flow of information for a period of time; although 
the information may be transmitted and used within friendly territory, the adversary' is 
denied access to it. The prevention of the acquisition and dissemination of new knowledge. 

Disruption — The reduction of the capacity to provide and/or process information 
(reversible). This is a combination of delay and corruption. The delay of the acquisition and 
dissemination of new knowledge and the destruction of existing knowledge. 

Degradation — The permanent reduction in the capacity to provide and/or process 
information. 

Destruction - The destruction of information before it can be transmitted; the permanent 
elimination of the capacity to provide and/or process information. 

6. Thus, electronic attack (EA) would not fall within this category. For instance, using an 
electromagnetic pulse to destroy a computer's electronics would be EA, whereas transmitting a 
code or instruction to a system's central processing unit to cause the power supply to short out 
would be CNA. Id. 

1 . On CNA and the jus ad bellum, that body of international law governing the legality of 
the resort to force by States, see Michael N. Schmitt, Computer Network Attack and the Use of 
Force in International Law: Tlwughts on a Normative Framework, 37 COLUMBIA JOURNAL OF 
TRANSNATIONAL LAW 885 (1999); Richard Aldrich, How Do You Know You are at War in the 
Information Age?, 22 HOUSTON JOURNAL OF INTERNATIONAL LAW 223 (2000). 

8. For a discussion of CNA in the context of both law and ethics that concludes a new 
convention is required, see William J. Bayles, Tlic Ethics of Computer Network Attack, 
PARAMETERS, Spring 2001, at 44. 

9. On this point see Emily Haslam, Information Warfare: Technological Changes and International 

Law, 5 Journal of Conflict and Security Law 157 (2000), particularly her discussion of 

points made in Richard Aldrich, Tlie International Legal Implications of Information Warfare. 



210 



Wired Warfare: Computer Network Attack and the Jus in Bello 



AlRPOWER JOURNAL, Fall 1996, at 99, and Mark Shulman, Discrimination in the Laws of 
Information Warfare, 37 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 939 (1999). 

10. Hague Convention IV Respecting the Laws and Customs of War on Land, Oct. 18, 
1907, pmbl., 36 Stat. 2295, 1 Bevans 634, reprinted in ADAM ROBERTS & RICHARD GUELFF, 
DOCUMENTS ON THE LAWS OF WAR 67 (3d ed. 2000); Protocol Additional (I) to the Geneva 
Conventions of 12 August 1949, and Relating to the Protection of Victims of International 
Armed Conflicts, art. 1(2), Dec. 12, 1977, 1125 U.N.T.S. 3, 16 INTERNATIONAL LEGAL 
MATERIALS 1391 (1977), reprinted in ROBERTS & GUELFF, supra, at 419 [hereinafter Protocol 
Additional I]. 

11. The Statute of the International Court of Justice defines custom as "a general practice 
accepted by law." Statute of the International Court of Justice, June 26, 1977, art. 38(l)(b), 59 Stat. 
1031, T.S. No. 933, 3 Bevans 1153, 1976 Y.B.U.N. 1052. The Restatement notes that custom 
"results from a general and consistent practice of states followed by them from a sense of legal 
obligation." Restatement (Third), Foreign Relations Law of the United States, sec. 102(2) (1987). 
See also North Sea Continental Shelf Cases, 1969 I.C.J. 3, 44 ("Not only must the acts concerned 
amount to settled practice, but they must also be such, or be carried out in such a way, as to be 
evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it."); 
The Paquete Habana, 175 US 677, 20 S.Ct. 290, 44 L.Ed 320 (1900); The Case of the S.S. Lotus 
(Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10(1927); Asylum Case (Col. v. Peru), 1950 I.CJ. 266; 
Case Concerning Right of Passage over Indian Territory (Port. v. India), 1960 I.C.J. 6. For 
academic comment on customary international law, see Jack L. Goldsmith & Eric A. Posner, 
Understanding the Resemblance Between Modern and Traditional Customary International Law, 40 

Virginia Journal of International Law 639 (2000); Patrick Kelly, The Twilight of 

Customary International Law, 40 VIRGINIA JOURNAL OF INTERNATIONAL LAW 449 (2000); 

Anthony A. D'Amato, The Concept of Custom in International Law (1971). 

12. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), 1996 I.C.J. 226 

(July 8), 35 International Legal Materials 809, para. 85. 

13. Protocol Additional I, supra note 10, art. 36: "In the study, development, acquisition or 
adoption of new weapons, means or methods of warfare, a High Contracting Party is under an 
obligation to determine whether its employment would, in some or all circumstances, be 
prohibited by this Protocol or by any other rule of international law applicable to the High 
Contracting Party." For the United States, the weapon review is required by Department of 
Defense Instruction 5000.2, Operation of the Defense Acquisition System, Oct. 23, 2000, para. 
4.7.3.1.4. It provides, in relevant part, that "DoD acquisition and procurement of weapons and 
weapon systems shall be consistent with all applicable domestic law and all applicable treaties, 
customary international law, and the law of armed conflict (also known as the laws and customs of 
war) .... Additionally, legal reviews of new, advanced or emerging technologies that may lead to 
development of weapons or weapon systems are encouraged." 

14. For instance, see the analysis in Robert G. Hanseman, The Realities and Legalities of 
Information Warfare, 42 AIR FORCE LAW REVIEW 173, 183-184 (1997). 

15. See generally, Schmitt, supra note 7. 

16. See generally, contributions to Symposium: The International Legal Fallout from Kosovo, 

12 European Journal of International Law 391 (2001); Bruno Simma, NATO, the 

UN and the Use of Force: Legal Aspects, 10 EUROPEAN JOURNAL OF INTERNATIONAL LAW 1 
(1999); Antonio Cassese, Ex iniuria ius oritur. Are We Moving towards International Legitimation of 
Forcible Humanitarian Countermeasures in the World Community, 10 EUROPEAN JOURNAL OF 
INTERNATIONAL LAW 23 (1999). 

17. For a description of Russian actions, see Human Rights Watch, World Report 2001 
(Russia), www.hrw.org/wr2kl. The abuses were condemned in UN Commission on Human 

211 



Michael N. Schmitt 



Rights Resolution 2001/24, Situation in the Republic of Chechnya of the Russian Federation, 
UN Doc. E/CN.4/RES/2001/24, April 20, 2001. 

18. Leslie C. Green, The Contemporary Law of Arjvied Conflict 70 (2d ed. 
2000). 

19. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GC 
I]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and 
Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, art. 2, 6 U.S.T. 3217, 75 
U.N.T.S. 85 [hereinafter GC II]; Geneva Convention Relative to the Treatment of Prisoners of 
War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]; and Geneva 
Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 2, 
6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV] (emphasis added). The conventions are 
reprinted in ROBERTS & GUELFF, supra note 10, at 195, 221, 243, and 249 respectively. 

20. Protocol Additional I, supra note 10, art. 1. 

21. Protocol Additional (II) to the Geneva Conventions of August 12, 1949, and Relating to 
the Protection of Victims of Non-international Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 

609, 16 International Legal Materials 1442 (1977), reprinted in Roberts & Guelff, 

supra note 10, at 481. 

22. Protocol Additional I deals with conflict between States, whereas Protocol Additional II is 
that between a State and a rebel group (or groups). 

23. Non-international armed conflict can occur solely within the confines of a single State. 

24. Hague Convention (III) Relative to the Opening of Hostilities, Oct. 18, 1907, art. 1, 1 
Bevans 619, 2 AMERICAN JOURNAL OF INTERNATIONAL LAW (Supp.) 85 (1908), reprinted in 

Dietrich Schindler & Jiri Toman, The Laws of Armed Conflict 57 (1988). 

According to the commentary to the 1949 Geneva Conventions, "[t]here is no longer any need for 
a formal declaration or war, or for recognition of the state of war, as preliminaries to the application 
of the Convention. The Convention becomes applicable as from the actual opening of hostilities." 
COMMENTARY: GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF 

the Wounded and Sick in Armed Forces in the Field 32 (Jean Pictet ed., 1952) 

[hereinafter GC I COMMENTARY] . 

25. GC I COMMENTARY, supra note 24, at 32-33 (emphasis added). 

26. Commentary on the Additional Protocols of 8 June 1977 to the Geneva 
CONVENTIONS OF 12 AUGUST 1949, para. 62 (emphasis added) (Yves Sandoz, Chnstophe 
Swinarki & Bruno Zimmerman eds., 1987) [hereinafter PROTOCOLS ADDITIONAL 
COMMENTARY]. The commentary to Protocol Additional II refers back to the commentary to 
common Article 3 of the 1949 Conventions and to that on Protocol Additional \. Id., para. 4448, fh 2. 

27. PROTOCOLS ADDITIONAL COMMENTARY, supra note 26, para. 4341 (emphasis added). 

28. See, e.g., discussion in INGRID DETTER, THE LAW OF WAR 20-21 (2d ed. 2000); 
Christopher Greenwood, Historical Developmetit and Legal Basis, in THE HANDBOOK OF 

Humanitarian Law in Armed Conflict 1, 42 (Dieter Fleck ed., 1995). 

29. For instance, the Preamble to Protocol Additional I notes that "it [is] necessary ... to 
reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement 
measures intended to reinforce their application." Additional Protocol I, supra note 10, pmbl. 

30. The designation "Geneva Law" refers to that portion of the law of armed conflict 
addressing protected classes of persons: civilians, prisoners of war, the sick or shipwrecked, and 
medical personnel. It is distinguished from "Hague Law," which governs methods and means ot 
combat, occupation, and neutrality. For a discussion of the international instruments which tall 
into each category, and of those which display elements of both, see FREDERIC DeMULINEN, 

Handbook on the Law of War for Armed Forces 3-4 (1987). 



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Wired Warfare: Computer Network Attack and the Jus in Bello 



31. On the topic of attribution of an act to a State, see the International Law Commission's 
Draft Articles on State Responsibility, 1996 ILC Report, ch. Ill, www.un.org/law/ilc/reports/ 
1996/chap03.htm#doc38. 

32. This possibility was described in PRESIDENT'S COMMISSION ON CRITICAL 
INFRASTRUCTURE PROTECTION, CRITICAL FOUNDATIONS: PROTECTING AMERICA'S 

Infrastructures, Oct. 1997, at A-46. 

33. Although not a Party to Protocol Additional I, the United States considers many of its 
provisions to be declaratory of customary international law. For a non-official, but generally 
considered authoritative, delineation of those viewed as declaratory, see Michael J. Matheson, 
Session One: The United States Position on the Relation of Customary International Law to the 1911 
Protocols Additional to the 1949 Geneva Conventions, 2 AMERICAN UNIVERSITY JOURNAL OF 
INTERNATIONAL LAW AND POLICY 419 (1987). See also INTERNATIONAL & OPERATIONAL 

Law Division, Office of the Judge Advocate General, Department of the Air 

FORCE, OPERATIONS LAW DEPLOYMENT DESKBOOK, tab 12, no date, and comments by the 
then State Department Legal Advisor Abraham D. Soafer in Agora: The US Decision Not to 
Ratify Protocol I to the Geneva Conventions on the Protection of War Victims, 82 AMERICAN JOURNAL 

of International Law 784 (1988). 

34. Protocol Additional I, supra note 10, art. 48. The centrality of the principle to humanitarian 
law is noted in the ICRC commentary thereon: 

The basic rule of protection and distinction is confirmed in this article. It is the 
foundation on which the codification of the laws and customs of war rests: the civilian 
population and civilian objects must be respected and protected in armed conflict, and for 
this purpose they must be distinguished from combatants and military objectives. The entire 
system established in The Hague in 1899 and 1907 and in Geneva from 1864 to 1977 is 
founded on this rule of customary law. It was already implicitly recognized in the St. 
Petersburg Declaration of 1868 renouncing the use of certain projectiles, which had stated 
that "the only legitimate object which States should endeavour to accomplish during war is 
to weaken the military forces of the enemy." Admittedly this was concerned with 
preventing superfluous injury or unnecessary suffering to combatants by prohibiting the use 
of all explosive projectiles under 400 grammes in weight, and was not aimed at specifically 
protecting the civilian population. However, in this instrument the immunity of the 
population was confirmed indirectly. 

In the Hague Conventions of 1899 and 1907, like the Geneva Conventions of 1929 and 
1949, the rule of protection is deemed to be generally accepted as a rule of law, though at 
that time it was not considered necessary to formulate it word for word in the texts 
themselves. The rule is included in this Protocol to verify the distinction required and the 
limitation of attacks on military objectives. 

Protocols Additional Commentary, supra note 26, paras. 1863-64. 

35. Protocol Additional I, supra note 10, art. 51.2. 

36. Id., art. 52.1. 

37. Id., art. 51.4. 

38. Id., art. 52.2. 

39. Id., arts. 51.1 & 51.2 (emphasis added). 

40. Protocols Additional Commentary, supra note 26, para. 1875 (emphasis added). 

41. It is reasonable to include human suffering in the meaning based on the fact that the 
protocol prohibits causing terror, also a mental condition. Protocol Additional I, supra note 10, art. 
51.2. 

42. Id., arts. 51.5(b); 57.2(a)(m); 57.2(b). 

43. Id., arts. 35.3 & 55.1. 

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Michael N. Schmitt 



44. Id., art. 56.1. 

45. Protocols Additional Commentary, supra note 26, para. 1881. 

46. But see Haslam, supra note 9, at 173. 

47. Indeed, the United States has even developed doctrine for the conduct of psychological 
operations. Chairman of the Joint Chiefs of Staff, Joint Doctrine for Psychological Operations, 
Joint Publication 3-53, July 10, 1996. Actions intended to terrorize the civilian population are 
prohibited by Protocol Additional I, supra note 10, art. 51.2. 

48. Protocol Additional I, supra note 10, art. 57.2(a) (i). The commentary to the provision 
further explains the obligation. 

Admittedly, those who plan or decide upon such an attack will base their decision on 
information given them, and they cannot be expected to have personal knowledge of the 
objective to be attacked and of its exact nature. However, this does not detract from their 
responsibility, and in case of doubt, even if there is only slight doubt, they must call for 
additional information and if need be give orders for further reconnaissance to those of their 
subordinates and those responsible for supportive weapons (particularly artillery and air 
force) whose business this is, and who are answerable to them. In the case of long-distance 
attacks, information will be obtained in particular from aerial reconnaissance and from 
intelligence units, which will of course attempt to gather information about enemy military 
objectives by various means. The evaluation of the information obtained must include a 
serious check of its accuracy, particularly as there is nothing to prevent the enemy from 
setting up fake military objectives or camouflaging the true ones. In fact it is clear that no 
responsible military commander would wish to attack objectives which were of no military 
interest. In this respect humanitarian interests and military interests coincide. 

Protocols Additional Commentary, supra note 26, para. 2195. 

49. Protocol Additional I, supra note 10, art. 43.1—2. 

50. Id., art. 52.2. 

51. Indeed, the commentary states that: "The text of this paragraph certainly constitutes a 
valuable guide, but it will not always be easy to interpret, particularly for those who have to decide 
about an attack and on the means and methods to be used." PROTOCOLS ADDITIONAL 
COMMENTARY, supra note 26, para. 2016. 

52. Id., paras. 2020-23. 

53. Id., para. 2024. 

54. US Navy/Marine Corps/Coast Guard, The Commander's Handbook on the Law of Naval 
Operations (NWP 1-14M, MCWP 5-2.1, COMDTPUB P5800.7), para 8.1.1 (1995), reprinted in 
its annotated version as Volume 73 of the US Naval War College's International Law Studies series 
[hereinafter Handbook]. This assertion is labeled a "statement of customary international law." 
The Handbook cites General Counsel, Department of Defense, Letter of Sept. 22, 1972, reprinted 

in 67 American Journal of International Law 123 (1973), as the basis for this 

characterization. 

55. Bankovic & Others v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, 
Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey 
and the United Kingdom. 

56. Protocol Additional I, supra note 10, art. 50.1. 

57. Id., art. 52.1. 

58. Id., art. 51 .2 & 52. The Statute for the International Criminal Court also prohibits the direct 
targeting of civilians or civilian objects. Rome Statute for the International Criminal Court, art. 
8.2(b)(i) & (h), U.N. Doc. A/Conf. 183/9, July 17, 1998, at Annex II [hereinafter Rome Statute], 
reprinted in 37 INTERNATIONAL LEGAL MATERIALS 999 (1998), and M. CHERIF BASSIOUNI. 



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Wired Warfare: Computer Network Attack and the Jus in Bello 



The Statute of the International Court: A Documentary History 39 (1999), 

and available on-line at www.un.org/law/icc/texts/romefra.htm. 

59. Id., arts. 50.1 (for civilians) & 52.3 (for civilian objects). 

60. Id., art. 51.3; PROTOCOLS ADDITIONAL COMMENTARY, supra note 26, para. 1944. 

61. Letter from DAJA-IA to Counselor for Defense Research and Engineering (Economics), 
Embassy of the Federal Republic of Germany (Jan. 22, 1988), cited in W.H. Parks, Air War and the 
Law of War, 32 AlR FORCE LAW REVIEW 1, 34 (1992). 

62. GC III, supra note 19, art. 4(4). 

63. Id. 

64. Protocol Additional I, supra note 10, art. 56.1. This prohibition extends to attacks on other 
military objectives in their vicinity if the attack might cause such a release. There are exceptions to 
the general prohibition of the article. 

2. The special protection against attack provided by paragraph 1 shall cease: 

(a) for a dam or a dyke only if it is used for other than its normal function and in regular, 
significant and direct support of military operations and if such attack is the only feasible way 
to terminate such support; 

(b) for a nuclear electrical generating station only if it provides electric power in regular, 
significant and direct support of military operations and if such attack is the only feasible way 
to terminate such support; 

(c) for other military objectives located at or in the vicinity of these works or installations 
only if they are used in regular, significant and direct support of military operations and if 
such attack is the only feasible way to terminate such support. 

Id., art. 56.2. 

65. Id., art. 54.2. See also Rome Statute, supra note 58, art. 8.2(b) (xxv). 

66. PROTOCOLS ADDITIONAL COMMENTARY, supra note 26, para. 2110. However, the 
prohibition does not apply to objects used solely for the sustenance of enemy forces or "in direct 
support of military action." Protocol Additional I, supra note 10, art. 54.3. An example of the latter 
would be a agricultural area used for cover by military forces. 

67. Id., arts. 35.3 & 55. See also Rome Statute, supra note 58, art. 8.2(b)(iv). On the issue of 
environmental damage during armed conflict, see THE ENVIRONMENTAL CONSEQUENCES OF 
WAR: LEGAL, ECONOMIC, AND SCIENTIFIC PERSPECTIVES (Jay E. Austin & Carl E Bruch eds., 
2000); Michael N. Schmitt, Green War: An Assessment of the Environmental Law of International 
Armed Conflict, 22 YALE JOURNAL OF INTERNATIONAL LAW 1-109 (1997); PROTECTION OF 
THE ENVIRONMENT DURING ARMED CONFLICT AND OTHER MILITARY OPERATIONS 
(Richard J. Grunawalt, John E. King & Ronald S. McClain eds., 1996) (Vol. 69, US Naval War 
College International Law Studies). 

68. Protocol Additional I, supra note 10, art. 12. However, note that there are specific criteria 
for the extension of protection to civilian facilities. Id., art. 12.2. See also Rome Statute, supra note 
58, art. 8.2(b) (ix) & (xxv). 

69. Id., arts. 21-31. The extent of the protection varies depending on the category of 
transportation and its location. 

70. Id., art. 53. 

71. Id., art. 62.3. 

72. Id., art. 70. Special provisions as to when such operations are entitled to the protection 
apply. Rome Statute, supra note 58, art. 8.2(b) (hi). 

73. GC I, supra note 19, art. 46; GC II, supra note 19, art. 47; GC III, supra note 19, art. 13; GC 
IV, supra note 19, art. 33; Protocol Additional I, supra note 10, arts. 20, 51-56. 

74. An example of an attack on a combatant that would be unlawful is one that employs a 
forbidden weapon, such as poison. 

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Michael N. Schmitt 



75. Soafer, supra note 33, at 470. For the official US position on reprisals against civilians, see 
Handbook, supra note 54, paras. 6.2.3 & 6.2.3.1—3. 

76. The reservation reads: 

The obligations of Articles 51 and 55 are accepted on the basis that any adverse party against 
which the United Kingdom might be engaged will itself scrupulously observe those 
obligations. If an adverse party makes serious and deliberate attacks, in violation of Article 
51 or Article 52 against the civilian population or civilians or against civilian objects, or, in 
violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the 
United Kingdom will regard itself as entitled to take measures otherwise prohibited by the 
Articles in question to the extent that it considers such measures necessary for the sole 
purpose of compelling the adverse party to cease committing violations under those 
Articles, but only after formal warning to the adverse party requiring cessation of the 
violations has been disregarded and then only after a decision taken at the highest level of 
government. Any measures thus taken by the United Kingdom will not be disproportionate 
to the violations giving rise there to and will not involve any action prohibited by the 
Geneva Conventions of 1949 nor will such measures be continued after the violations have 
ceased. The United Kingdom will notify the Protecting Powers of any such formal warning 
given to an adverse party, and if that warning has been disregarded, of any measures taken as 
a result. 

Reprinted on the International Committee of the Red Cross Treaty Database website, 
www.icrc.org/ihl. 

77. For a comprehensive review of the principle, see ESBJORN ROSENBLAD, 

International Humanitarian Law of Armed Conflict: Some Aspects of the 
Principle of Distinction and Related Problems (1979). 

78. This typology is adopted from Christopher Greenwood, Tl\e Law oj Weaponry at the Start 
of the New Millennium, in THE LAW OF ARMED CONFLICT: INTO THE NEXT MILLENNIUM 
185 (Michael N. Schmitt & Leslie C. Green eds., 1998) (Vol. 71, US Naval War College 
International Law Studies). By contrast, the US Air Force employs the categories of military 
necessity, humanity, and chivalry, with proportionality folded into necessity, whereas the US 
Navy uses necessity, humanity and chivalry. Compare DEPARTMENT OF THE AlR FORCE. 

International Law — The Conduct of Armed Conflict and Air Operations (AF 
Pamphlet 110-31, 1976), at 1-5-1-6 with Handbook, supra note 54, para. 5-1. 

79. Protocols Additional Commentary, supra note 26, para. 1957. 

80. On the attacks, see U.S. DEPARTMENT OF DEFENSE, CONDUCT OF THE PERSIAN GULF 
WAR (Title V Report to Congress) (1992), at 623, reprinted in 31 INTERNATIONAL LEGAL 
MATERIALS 612 (1992). 

81. An expanded discussion is in Michael N. Schmitt, Bellum Americanum: Tlie US View of 
Twenty-First Century War and its Possible Implications for the Law of Armed Conflict, 19 MICHIGAN 

JOURNAL OF INTERNATIONAL LAW 1051, 1080-81 (1998). 

82. Protocol Additional I, supra note 10, arts. 51.5(a) & 57.2(a)(iii) & (b). On proportionality, 
see WilliamJ. Fenrick, The Rule of Proportionality and Protocol Additional I in Conventional Warfare, 98 
MILITARY LAW PREVIEW 91 (1982); Judith G. Gardam, Proportionality and Force in International 

Law, 87 American Journal of International Law 391 (1993). 

83. Protocols Additional Commentary, supra note 26, para. 2209. 

84. A number of understandings/declarations/reservations have been issued on this point by 
Parties to Protocol Additional I. For instance, the United Kingdom made the following reservation 
when ratifying the protocol in 1998: "In the view of the United Kingdom, the military advantage 
anticipated from an attack is intended to refer to the advantage anticipated from the attack 



216 



Wired Warfare: Computer Network Attack and the Jus in Bello 



considered as a whole and not only from isolated or particular parts of the attack." ICRC website, 
supra note 76. 

85. An additional problem is that the valuation process itself is complex. For instance, culture 
may determine the value placed on an item or the value of an item may shift over time. The issue of 
valuation paradigms is explored, in the context of environmental damage during armed conflict, 
more fully in Michael N. Schmitt, War and the Environment: Fault Lines in the Prescriptive Landscape, 
37 Archiv des Volkerrechts 25 (1999). 

86. Protocols Additional Commentary, supra note 26, para. 1978. 

87. NATO Denies Targeting Water Supplies, BBC WORLD ONLINE NETWORK, May 24, 
1999, http://news.bbc.co.uk/hi/english/world/europe/newsid_351000/351780.stm. 

88. See generally, Protocol Additional I, supra note 10, art. 57. 

89. The Joint Warfare Analysis Center currently is engaged in modeling foreign infrastructures 
and contingent outcomes. 

90. Id., art. 57.2(a). 

91. Id., art. 57.3. 

92. Article 39 of Additional Protocol I prohibits the use of the enemy's military emblems, 
insignia or uniforms. This prohibition, which the United States disagrees with except when it 
occurs during the actual engagement {see Handbook, supra note 54, para 12.1.1, fn 2), does not 
extend to the use of codes, passwords, and the like. MICHAEL BOTHE, KARL J. PARTSCH & 

Waldemar A. Solf, New Rules for Victims of Armed Conflicts (1982). However, 

Article 38 prohibits the misuse of protective signals. 

93. Protocol Additional I, supra note 10, art. 37. See also Rome Statute, supra note 58, art. 
8.2(b)(vii) & (xi). Convention (IV) respecting the Laws and Customs of War on Land, Oct. 18, 
1907, annexed Regulations, art. 23(b)7, 36 Stat. 2277, 205 Consolidated Treaty Series 277, 
reprinted in ROBERTS & GUELFF, supra note 10, at 73, prohibits treacherous killing. 

94. Protocol Additional I, supra note 10, annex, art. 11. 

95. Office of General Counsel, Department of Defense, An Assessment of Legal Issues in 
Information Operations (Nov. 1999). The paper is appended to this volume as the Appendix. 

96. Id., art. 37.1(c); US Army Judge Advocate General's School, Operational Law Handbook 
5-16 (2000). 

97. Protocols Additional Commentary, supra note 10, paras. 1492—94. 

98. GC IV, supra note 19, art. 28; Protocol Additional I, supra note 10 art. 51.7. See also Rome 
Statute, supra note 58, art. 8.2(b) (xxiii); Hans P. Gasser, Protection of the Civilian Population, in THE 

Handbook of Humanitarian Law in Armed Conflict 209, 218 (Dieter Fleck ed., 
1995). 

99. Protocol Additional I, supra note 10, art. 47.2. The United States does not support Article 
47. 

100. Id., art. 47.1. This is problematic because States Party to the International Convention 
against the Recruitment, Use, Financing and Training of Mercenaries, albeit limited in number 
and though the convention is not yet in force (it has only secured 21 of the 22 necessary ratifications 
as of October 2001), are obligated to amend their domestic laws to outlaw mercenarism. GA Res. 
44/34 (1989), art. 5.3, ICRC website, supra note 76. 

101. For a description of hesitancy to use CNA during Operation ALLIED FORCE, see 
Bradley Graham, Military Grappling with Rules for Cyber Warfare: Questions Prevented Use on 
Yugoslavia, WASHINGTON POST, Nov. 8, 1999, at Al. 

102. See Schmitt, Computer Network Attack, supra note 7. 

103. Consider the comment of Lieutenant General Michael Short, USAF, who commanded 
the air war during Operation ALLIED FORCE: 

I felt that on the first night, the power should have gone off, and major bridges around 
Belgrade should have gone into the Danube, and the water should be cut off so that the next 

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Michael N. Schmitt 



morning the leading citizens of Belgrade would have got up and asked, "Why are we doing 
this?" and asked Milosovic the same question. 

Craig R. Whitney, The Commander: Air Wars Won't Stay Risk-Free, General Says, THE NEW 
YORK TIMES, June 18, 1999, at Al. 

104. PROTOCOLS ADDITIONAL COMMENTARY, supra note 26, para. 1871, notes that "it is 
the duty of Parties to the conflict to have the means available to respect the rules of the Protocol. In 
any case, it is reprehensible for a Party possessing such means not to use them, and thus consciously 
prevent itself from making the required distinction." 

105. A typical Information Operations cell is illustrated in Joint Pub 3-13, supra note 2, at figure 
IV-4 and accompanying text. It includes an IO officer fromJ-3; representatives fromJ-2, 4, 5, 6, 7, 
supporting combatant commands, and service and functional components; a judge advocate; and 
public affairs, counterintelligence, civil affairs, targeting, special operations, special technical 
operations, electronic warfare, psychological operations, military deception, and operations 
security experts. 



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I 



Proportionality, Cyberwar, and the 

Law of War 



Ruth G. Wedgwood 



he advent of the computer has enormously increased the efficiency of 
modern economies, lending computational prowess to the organization 
of industrial production, inventory, communications, the integration of power 
grids, the control of financial transactions, and transportation routing. The 
decentralized architecture of the personal computer, and its Internet platform, 
have linked economic actors screen-to-screen, allowing direct communications 
and disintermediated transactions, bypassing a costly institutional structure of 
wholesale and retail agencies. The real-time communication of common writ- 
ten texts through e-mail and document formats has strengthened coordination 
within and between organizations, permitting consultative processes to work in 
staggered time. Cybernetic life has also brought new problems in public and pri- 
vate law, including data privacy, jurisdiction for regulating speech and the pro- 
tection of intellectual property. 

Challenges for the law in a cybernetic age will extend to the battlefield. Cyber- 
netics have transformed war. In data-sharing, military planners were the first to en- 
gineer joint access to a common pool through the "D ARPANET," fabled 
forerunner of the civilian sector's Internet. In air operations and even for ground 
forces, computer and sensor technology can eventually be used to construct a 
real-time picture of an integrated battlespace, to be shared among friendly forces. 



Proportionality, Cyberwar, and the Law of War 



Computers, supporting sensors and global positioning satellites will enhance the 
precision of weaponry and maneuvers, supplementing human judgment with dig- 
ital assessments. The accuracy of kinetic weapons will be improved by using opti- 
cal matches of targets and trajectory, and reconciling the real coordinates of 
projectiles and aim points. (Even in the last ten years, the navigational capabilities 
of cruise missiles have been transformed.) Though budget constraints and pro- 
curement cycles may slow down the implementation of this virtual battlespace, 
the prospects are clear. A shared system of observation and control will support the 
adjustment of tactics, the dynamic targeting of the adversary's assets, the full inte- 
gration of multiple weapons platforms, and safeguards against friendly fire. Ad- 
vanced electronics and computing capabilities also hold the promise of confusing 
an adversary's command and control, disrupting his operating systems, and mask- 
ing his view of the battlespace. The future of national missile defense also depends 
on the extraordinary computing capabilities that can handle massive data on 
launch speed, trajectory, and atmospheric perturbations. 

Computer technology will also continue to support American military trans- 
portation, communications, and logistics — essential in mobilizing, deploying, 
and sustaining a combat force, so often the Achilles' heel of lesser military forces. 
The American military is a far-flung force, deployed around the globe, conduct- 
ing exercises, patrols, and peace operations in numerous theatres at once. Access 
to common data and immediate communications can integrate a decentralized 
force structure. 

But the luxury of a new technology also can create vulnerabilities, and en- 
hancement can become dependency. The sophistication of American military 
operations may invite a new mode of asymmetric attack. Opposing forces whose 
own organization is far more primitive may attempt an electronic version of 
jiu-jitsu. The same technological doors that permit easy communication also 
allow unwanted foreign entry. The portals for adjustment of operations may 
permit deliberate disruption. Encryption of data and communications has 
grown in power, but code-breaking has also benefited from number-crunching 
bionics. Protecting sensitive information through compartmentalization is more 
difficult when access may be gained through trap doors and undetected key- 
holes. The quickly changing design of software and hardware, and the Penta- 
gon's frequent reliance on commercially available products for "non-critical" 
operations, also means that information technologists may not fathom the vul- 
nerability of the systems they employ. Rather like war-gaming, defensive un- 
derstanding is often gained only after a simulated attack. The advantages of 
cybernetic organization for military campaigns must be weighed against the 
dangers of compromise and disruption. 



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Ruth Wedgwood 



Military law must also address the new architecture of cyberwar, including 
the ill fit of existing normative structures for electronic warfare. A primary chal- 
lenge for military thinkers is what to do about civilian safety. Over the centuries, 
the operational harshness of warfare has been challenged by the ideals of propor- 
tionality and discrimination. These ideals of the profession of arms, imple- 
mented by military commanders and their legal advisors, ask for a critical 
distinction between civilian and military targets, and teach that military advan- 
tage always must be measured against civilian loss. Cybernetic conflict may pose 
new hazards to civilian safety, taxing our traditional notions of the division be- 
tween the battlefield and civilian life. It is well to consider some of these prob- 
lems in advance in order to construct the necessary safeguards. 1 

Discrimination among targets is a fundamental norm of military law, ac- 
knowledging that there is, ultimately, an important distinction to be made be- 
tween civilian objects and military assets. The idea of discrimination is rooted in 
the belief that warfare should be effective, rather than punitive, and that wars can 
be won without deliberately harming civilians. The moral compromises of war 
do not extend to unnecessary cruelty. Noncombatants are considered innocent 
(even where, in their political lives, they may have favored a war) and enjoy a 
right to life protected even in warfare. Apart from the ethical claim, there is a 
practical reason to observe this scruple. The reciprocal practice of discrimination 
means that a soldier has greater assurance that his own family members will sur- 
vive the conflict. A military operator also will see discrimination as the practical 
application of economy of force, saving one's firepower for targets that matter. 
The norm is further supported by a working hypothesis about war termina- 
tion — armed conflicts may end earlier where defeated soldiers can reintegrate 
into a workable civilian society, in which there is something to return to. Re- 
newal of the conflict may be more likely if civilian society is left destitute and a 
generation reared seeking revenge. 

Proportionality extends the protection for civilians beyond the ban on delib- 
erate targeting. Proportionality argues that dominant intention is not enough in 
choosing the objects of destruction in a war. Even with a military target directly 
in view, there must be some balancing between the advantage to the war effort 
from a target's destruction and the foreseeable "incidental" damage to civilians. 
The terms of trade in this moral exchange are not terribly clear, to be sure — the 
relative weighting of military gain and civilian harm is a complex judgment that 
involves both battlefield expertise and situational ethics. But at the limit, there is 
an admitted case in which an ephemeral military advantage could not outweigh 
enormous harm. 

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Proportionality, Cyberwar, and the Law of War 



In the idealized account of the law of war, the operational code of jus in bello is 
equally binding on both sides no matter who was at fault in starting the conflict. 
In this view, the operational norms regulating how a war is fought do not vary 
according to the purpose of the war. The same tactics govern a virtuous or con- 
demnable war. Jus in bello binds a combatant despite his status as invader or as a 
victim defending his homeland. The perceived value of this separation is that a 
third party or protecting power can monitor the observance of humanitarian law 
without venturing into the hotly disputed territory of casus belli and the merits of 
the underlying dispute. The international limits on the initiation of warfare, jus 
ad bellum, are placed in a separate normative framework. (The practical tolerance 
of political publics for this attempted distinction is another matter. Indeed, in the 
preparation for the Nuremberg trials, at least one prominent scholar argued that 
any use of force by the Axis, even against traditional military targets, should be 
considered a war crime, since each use of force aided the Nazi war of aggres- 
sion. 2 The obverse conclusion, that any tactic was permissible to defeat Nazism, 
was not openly mooted, but may underlie some of our practical assessments.) 

Protecting civilians is harder than it sounds on paper for a number of rea- 
sons. First, in modern warfare, the mobilization of national economies and war 
production makes industrial plants and infrastructure into a second battlefield. 
Economic assets are considered military targets for their support of the war ef- 
fort. Critics have questioned the efficacy of particular air campaigns, but the le- 
gitimacy of weakening an adversary's industrial base and war production 
facilities is generally accepted. Unless an air campaign can be confined to 
night-time bombing, the targeting of war industries will endanger workers in 
the plants, even though they are technically noncombatants. Locating war in- 
dustries in urban areas is also likely to endanger residential areas, unless preci- 
sion bombing is used. 

Second, the rural conflicts of the Cold War and decolonization also chal- 
lenged the protection of civilians. The techniques of guerrilla warfare typically 
involve camouflaging insurgent forces among the civilian population as pro- 
tection against more powerful adversaries. Distinctive military insignia or dress 
has been a long-standing requirement of legitimate warfare in order to distin- 
guish civilians from combatants and the failure to identify forces traditionally 
deprived the disguised combatants of the protections of the law of war, includ- 
ing prisoner of war status. But the norm of self-identification was derided as a 
luxury in an era of wars against "colonial domination." 3 Undermining this rule 
of combatant identification poses obvious dangers to innocent civilians. 4 In 
civil war, terrorist tactics against civilians also have been deliberately used as a 
powerful advertisement that the established government cannot guarantee 



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Ruth Wedgwood 



protection. Governments, in turn, have used terror to persuade civilian popu- 
lations to withhold support from insurgents. 

The problem of target masquerade extends even to conventional warfare, 
since combatants are sometimes tempted to disguise military assets as civilian fa- 
cilities. Secreting a weapons cache inside a school building serves to collapse the 
attempted distinction between civilian and military sites, and is an act of perfidy 
punishable as a war crime. Misuse of a civilian facility deprives the target of its 
protected status, but the damage remains because it makes combatants less in- 
clined generally to respect the protection guaranteed to civilian sites. 

The third source of heightened danger for civilians stemmed from nuclear 
confrontation in the Cold War, with its strategies of deterrence through mutu- 
ally assured destructive capability, flexible response, and counterforce targeting. 
Even with the confinement of nuclear targeting to military objects such as mis- 
sile silos, troop concentrations, and ports and airfields, the externalities of radia- 
tion, electromagnetic pulse, and a broad radius of immediate destruction meant 
that civilian populations would have been gravely endangered. 

Since the end of the Cold War, the proliferation of ethnic conflicts has con- 
tinued to pose grave hazards to civilians. In a war whose target is the civilian 
population itself, atrocious acts are often committed against noncombatants as 
one way of causing populations to flee. The war aim of creating a mono-ethnic 
territory is used to justify terror tactics in order to displace populations. Attacks 
on civilians are not incidental, but rest at the center of the conflict, serving the 
central war aim of purging minorities and ethnic rivals. Where advantage may be 
gained by the rapid consolidation of territory, the employment of terror against 
civilians is hard to contain. 

Even with the most worthy war aims, the principled distinction between mil- 
itary and civilian targets may be under pressure (though it is still mandatory to 
avoid terror tactics). In a humanitarian intervention such as the 1999 Kosovo 
campaign, designed to stem the gross mistreatment of civilian populations, re- 
sponsible leaders must seek to undermine the transgressing adversary's will to re- 
sist, using war as a mode of coercive diplomacy. Winning such a limited conflict 
is quite different from the unconditional surrender sought in the great land cam- 
paigns of the world wars. Striking mobile military vehicles, tanks, and artillery 
pieces in a mountainous terrain is exceedingly difficult, and (in a humanitarian 
intervention designed to thwart genocide) an expedited end to the conflict may 
be urgent. At least one high Yugoslav official has suggested that the Kosovo 
campaign was abandoned by Belgrade because Milosevic doubted the ultimate 
loyalty of the Yugoslav military. This disaffection was caused in part by the mili- 
tary's concern about how the steady destruction of Serbia's infrastructure would 

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Proportionality, Cyberwar, and the Law of War 



affect the welfare of their own families. While there is widespread consensus that 
civilians must not be deliberately reduced to starvation or other life-threatening 
conditions, at least one analyst has suggested that the rule of discrimination 
should permit the disabling of facilities that sustain some conveniences of mod- 
ern civilian life. The danger of a slippery slope is evident — the loss of water puri- 
fication and sewage disposal, for example, could cause devastating disease and 
lies beyond the pale of easy ethical analysis. Yet the problems of stopping a war 
that seems remote to the controlling polity are also evident, and the limit of 
"mere inconvenience" does not abandon the broader norm of protecting civil- 
ian survival. The troubling question of how to persuade an adversary to desist has 
not been made easier as well by the last decade's record of ineffective employ- 
ment of economic sanctions as an alternative instrument of coercion. 

Another difficult challenge to the conceptual categories of civilian and mili- 
tary objects has been created, ironically, by the new precision of guided muni- 
tions. With navigation by global positioning and optical recognition, aim points 
and target impact may be as exact as the particular courtyard of a building in an 
urban area. Targeting has an exactitude, and therefore a transparency of inten- 
tion, unknown to other wars. The targets sought in an air campaign are evident 
and public. The five-mile radius of uncertainty that surrounded the aerial deliv- 
ery of munitions in the Second World War served to obscure the target aim, 
apart from internal knowledge of the campaign plans. But precision-guided mu- 
nitions announce their destination, and pose the questions of target distinction 
masked in earlier wars. 

Finally, there is the serious dilemma of dual-use targets. This is again a prob- 
lem of distinction between military and civilian objects. It stems from the joint 
infrastructure of modern economies. Military and civilian facilities share a need 
for electricity, natural gas, and oil to sustain their basic services. Rarely is there a 
dedicated infrastructure exclusively serving military facilities. To disable the fa- 
cilities that sustain a military adversary may unavoidably burden the local civilian 
populations. In the Kosovo and Iraqi air campaigns, allied forces needed to sup- 
press anti-aircraft capability and ground radar guidance in order to allow safe al- 
lied entry into hostile airspace. Mobile facilities, camouflaged and positioned 
under the lee of a hill, are difficult to target even in clear weather. The only as- 
surance of safe air space may lie in pulling the plug on anti-aircraft by disabling a 
power grid. The legitimacy of doing so depends on a judgment about propor- 
tionality. Vital civilian functions such as schools, old age homes, and hospitals 
may also depend on electrical power. The civilian harm from their temporary 
disability must be conscientiously weighed against the military advantage. The 
merger of military and civilian electrical infrastructure shows the difficulty of a 

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Ruth Wedgwood 



strict principle of distinction, and the quandaries of judgments on proportional- 
ity. Oil and gasoline supplies, too, present a dual-use dilemma. Loss of refining 
and storage facilities can severely limit an adversary's ability to field armored di- 
visions for extended operations. Yet oil supplies may be necessary for the winter 
heating of civilian dwellings in urban areas. The ability of a regime to deprive its 
civilian population in favor of continued military capability makes the linkage 
even more painful. None of these real-world problems of ethics, law, and prin- 
ciple can be easily solved, 5 even while the law of armed conflict must maintain 
the ideals of discrimination and proportionality. 

The legal texts that have accompanied these historical changes are worthy of 
note, as a preliminary matter. The Hague Rules of 1907 were modest in their 
scope, anticipating in the Martens Clause that a changing technology and the 
unsettled practice of States might make codification difficult. 6 The Hague Rules 
forbid pillage and attacks on undefended towns, and require sparing, "as far as 
possible," cultural and medical institutions. Arms "calculated to cause unneces- 
sary suffering" were also banned. But some of the modern operational dilemmas 
lay beyond anticipation or consensus. 

Operational targeting was incidentally addressed in the 1949 Geneva Con- 
ventions, through the establishment of protections for hospitals and neutralized 
zones for civilians who "perform no work of a military character," as well as the 
right of evacuation of children and aged persons from encircled areas. 7 But in the 
1977 Geneva Protocols, 8 there was new attention both to a broader definition of 
proportionality and the nature of civilian targets. The effort was not altogether 
successful for Protocol I has been disputed in several of its features. The Protocol 
was signed but not ratified by the United States, and was excluded by the Secu- 
rity Council from the Statute of the International Criminal Tribunal for the for- 
mer Yugoslavia as a direct source of law for the tribunal. Its formal definition of 
proportionality has been modified further in the Rome negotiations for a per- 
manent international criminal court. 

Article 51(b) of Protocol I deems an attack "indiscriminate" if it "may be ex- 
pected to cause incidental loss of civilian life, injury to civilians, damage to civil- 
ian objects, or a combination thereof, which would be excessive in relation to 
the concrete and direct military advantage anticipated." The International 
Criminal Court (ICC) treaty limited the language, noting that military advan- 
tage is to be assessed in the context of an "overall" military campaign — allowing 
military commanders and operators to seek more distant, as well as immediate 
objectives. 9 A military advantage, for example, need not be "temporally or geo- 
graphically related to the object of the attack." 10 In addition, the ICC treaty 
notes that the military commander breaches a criminal rule only where the 

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Proportionality, Cyberwar, and the Law of War 



incidental loss of civilian life or injury to civilians is "clearly" excessive. 11 
"Knowledge" is an essential element. The uncertainties of war are legendary, 
and the commander's assessment must be based on the information he has avail- 
able at the time. Only where a commander, based on the information available 
to him at the time, "knew" the damage caused would be clearly excessive, is 
there a criminally culpable act. 12 This may include self-conscious knowledge of 
the breaching of a legal limit, as well as knowledge of the actual facts of the cam- 
paign. As noted by the committee of experts advising the prosecutor of the In- 
ternational Criminal Tribunal for the former Yugoslavia: 

It is much easier to formulate the principle of proportionality in general terms 
than it is to apply it to a particular set of circumstances because the comparison is 
often between unlike quantities and values. One cannot easily assess the value of 
innocent human lives as opposed to capturing a particular military objective. 13 

So, too, the text of the 1977 Protocol defining civilian objects was deemed 
incomplete by the Rome negotiators. Article 51(2) of Protocol I says, with ap- 
parent clarity, that the "civilian population as such, as well as individual civilians, 
shall not be the object of attack. Acts or threats of violence the primary purpose 
of which is to spread terror among the civilian population are prohibited." 14 Ar- 
ticle 52 prescribes that "civilian objects shall not be the object of attack or of re- 
prisals," but notes, tautologically, that "[cjivilian objects are all objects which are 
not military objectives as defined in paragraph 2." 15 The search for specificity is 
not greatly aided by the next bundle of negotiated language. Paragraph 2 of Arti- 
cle 52 notes broadly that "military objectives are limited to those objects which 
by their nature, location, purpose or use make an effective contribution to mili- 
tary action and whose total or partial destruction, capture or neutralization, in 
the circumstances ruling at the time, offers a definite military advantage." 

The difficulties of definition were implicitly recognized in the Rome negoti- 
ations for the permanent international criminal court. The implementation of 
Article 51 noted the centrality of intention — requiring proof that a commander 
"intended" that civilians as such be "the object of the attack" — arguably requir- 
ing specific intent to cause such harm and knowledge of the legal status of the 
protected persons. 

The Rome drafters also attempted to craft a criminal rule to implement Arti- 
cle 52, condemning attacks where the "object of the attack" was "civilian ob- 
jects, that is, objects which are not military objectives." 16 But the difficulties of 
distinction in regard to dual-use assets is implicitly acknowledged elsewhere in 
Protocol I. In Article 54, starvation of civilians as a method of warfare is 

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Ruth Wedgwood 



prohibited, and it is equally prohibited to attack or destroy "objects indispens- 
able to the survival of the civilian population" where the "specific purpose" is to 
deny them to the civilian population. But attack is concededly permitted where 
the asset is used in "direct support of military action," unless this would cause 
starvation or forced movement. 

How do these principles apply to computer attacks and computer defense, in 
an age of cyberwarfare? 

The requirement of discrimination between civilian and military objects 
presents a substantial challenge in cyberwarfare- — complicated as well by the 
question of neutrality. If, in a defensive mode, the United States were the victim 
of an attack on vital computer systems, the temptation to respond in kind would 
be considerable. Yet the ultimate source of a computer attack can be acutely dif- 
ficult to determine — a problem magnified by the deliberate use of "looping" or 
"weaving" — using another's server to disguise the origination of the attack. An 
attack is likely to be sent through an unrelated server in order to mask its author- 
ship, and a response in kind may end up damaging or disabling the "looped" 
server. The intermediate servers may be largely dedicated to civilian functions, 
and may even be in a country other than the originator of the attack. Even where 
the retaliatory response successfully limits its impact to the ultimate point of ori- 
gin, the counterattack may end up disabling civilian functions. The attacker can 
use a civilian platform for convenience or in order to mask State-sponsorship, 
even though the latter could qualify as perfidy. 

In a world of real geography, it is simpler to frame a response to the problem 
of unauthorized use of platforms. A sovereign State is held responsible to police 
the misuse of its territory. An insurgent force cannot launch cross-border attacks 
with impunity, and one rationale for permitting a counterattack across the bor- 
der is that the harboring State abandoned or was unable to discharge the duty to 
police its own soil. The same duty could be imposed on the proprietors of elec- 
tronic space and governing civilian authorities. But the organization of cyber- 
space is in private hands, and has no single authoritative source of police. 
Misappropriation of a server can be accomplished quickly and secretly, and even 
if a server's vulnerability has been detected before, not every trespass on a server 
is worth preventing. Unless the involvement of a nation State is evident, say by 
advertising an available "free zone" for cyberpirates, a retaliatory response may 
be disputed. 

In addition, it may be far harder to confine the effects of the counterattack 
than in a land-based response. Cyberspace counterattack is especially trouble- 
some because the topography is unknown. The shape of cyberspace is truly 
terra incognita, including a server's network linkages to civilian structures. In a 



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Proportionality, Cyberwar, and the Law of War 



conventional military campaign employing land forces or air attack against an 
adversary, the proximity of civilian structures and other protected objects can 
be mapped by surveillance aircraft, drones, or ground spotters. The informa- 
tion may be imperfect, and there may be no realistic way to avoid all incidental 
harm, but there is some relative idea of the likely consequences of an attack. A 
prepared target list or "bombing encyclopedia" is designed to permit estimates 
of probable civilian casualties. The method of approach to a target may be 
altered in some cases in order to minimize civilian harm should munitions go 
wide of the mark. But in cyberspace, there is often a rapidly changing architec- 
ture of linkage and control, and the attempt to intrude in order to map its geog- 
raphy may itself be detected and considered a hostile act. Nonetheless, one 
might be inclined to propose a defeasible duty of "benign" or "humanitarian" 
espionage — attempting to map cyberlinks in order to contain the consequences 
of a defensive counterattack. The technical feasibility of this is open to ques- 
tion, with the added difficulty that the very act of intrusion may be detected. 

For any form of cyber counterattack, one necessary scruple may be to build 
firewalls into the very instrument of intrusion. Where it is not feasible to con- 
duct benign mapping in advance, it may be conceivable to have the intrusion 
device map or filter as it goes, for example, by characterizing the content of files 
before it destroys them. This might help to distinguish between military and ci- 
vilian objects linked to the same server. Another palliative may be to conceive of 
proportionality as a dynamic matter. Greater damage to civilian objects may be 
tolerated in order to eliminate a security threat, so long as the damage is revers- 
ible or, indeed, aid is given in its restoration. 17 

An additional problem in applying proportionality is the twilight between 
criminal acts and acts of war. In the midst of a major conflict fought by conven- 
tional means, any accompanying electronic attack will be regarded as a matter of 
utter gravity, justifying a strong response against the actor, even with ensuing 
collateral damage. But in a more ambiguous setting, for example, where a State 
actor is gathering information that would facilitate illicit entry and hostile opera- 
tions, there is no predicate that provides a classical justification for the use ot 
overwhelming force in response. To be sure, intrusions even by non-State ac- 
tors, where they cause serious interference with vital operations or loss of life, 
would fit the ordinary understanding of terrorism. But Washington has chosen 
to emphasize the tools of criminal law in responding to most forms of terrorism, 
attempting to arrest and indict members of international networks, rather than 
treating them as combatants in an undeclared private war. Force is fully war- 
ranted to capture an international terrorist or thwart a planned attack, but crimi- 
nal law creates a set of expectations that are often frustrating to an effectively 

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Ruth Wedgwood 



fought conflict. Criminal law withholds any justification of punitive force until 
after proof has been mustered in court and a verdict is rendered by an independ- 
ent fact finder. Its proceedings are public, and the sources of evidence are often 
compromised during a trial by the public disclosure of the methods of surveil- 
lance. Proof beyond a reasonable doubt is an appropriate standard for protecting 
domestic liberty in a civil society. The extraordinary difficulty of detaining an 
individual offender is a worthy price to pay in order to preserve a libertarian po- 
litical culture. But criminal law's demanding standards are founded on the as- 
sumption that civil society enjoys the underlying fidelity of the relevant actors. 
International politics and the security decisions of nation States must sometimes 
proceed on more ambiguous indicators. 18 

In addition, the invocation of criminal law creates the expectation that ac- 
tion taken abroad will defer to local State consent. Because criminal processes 
are public, any related government action abroad is likely to become known. 
Actions taken for intelligence purposes that do not enjoy the consent of the 
foreign territorial State may do especially grave damage to bilateral relations if 
they are broadcast. Thus, when invoked, the criminal law paradigm tends to 
dominate Washington's response to a situation, since all other modalities must 
be weighed in light of the cost of their public disclosure. (Sometimes it is the 
mere fact of publicity that will cause a foreign government to react strenuously 
to an international security measure out of a perceived affront to its public dig- 
nity or amour propre.) 

Recent negotiations for a convention on cybercrime illustrate the point. 
Lengthy talks were conducted through the Council of Europe, with the partici- 
pation of the United States, Canada, Japan, and Australia. The draft treaty re- 
quires each participating country to criminalize various forms of computer 
misuse, including deliberate denial of service through distributed network at- 
tacks, and to create real-time methods of preserving and gathering relevant 
proof. 19 This is especially important since tracing an attacker may be possible 
only while the attack is underway and the actor is still on line. One of the treaty's 
more controversial features would require Internet service providers to preserve 
information at the request of a State party. Nonetheless, a successful criminal in- 
quiry will depend on the treaty cooperation of each country through which an 
attacker loops his communication. It will not take much sophistication for a 
cyber adversary to filter his messages through countries outside the treaty re- 
gime. Any direct response to the attack, through counterattack or disabling 
measure, may be resented by the treaty States in the loop as "derisive" of the 
treaty regime and discourage their later cooperation. Deference to the enforce- 
ment jurisdiction of local authorities is a premise of the treaty architecture, and 



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Proportionality, Cyberwar, and the Law of War 



yet may be unworkable for intelligence operations and national security mea- 
sures. Private hackers in Europe offered their services to Iraq during the Persian 
Gulf War, and, in a similar situation, the slow and deliberate processes of crimi- 
nal law may not be adequate for infrastructure protection. 

Even if there is a decision to treat State-sponsored cyber attacks as acts of war 
rather than crimes, it will remain difficult to identify these more serious incidents 
in a timely way. In biological warfare, it has recently been observed, it may be 
hard to distinguish the spread of natural pathogens from deliberate acts of con- 
tamination. The same difficulty can arise in distinguishing a prankster or techno- 
logical sociopath from an international adversary. The difference is surely 
important in assessing whether the attack is likely to escalate as the diversionary 
prelude to other more deadly methods of warfare. The ambiguity of sponsorship 
that one saw in the surrogate conflicts of the Cold War is likely to plague cyber 
defense as well. 

The dilemmas of civilian protection in cyber conflict are a circumstance to be 
lived with. Technology may solve some of the problems it has created. And the 
technological superiority of the United States in all modalities of conflict may 
mean that we can afford to accept some risk for the sake of maintaining a moral 
high ground. The best answer to the Solomonic cyber quandaries will require 
the continuing collaboration of technologists, warfighters, ethicists, and, lest we 
forget, experts in the law of war. 

Notes 

1 . Thoughtful commentaries on the law of war and its relation to cyber conflict include 
Michael N. Schmitt, Computer Network Attack and the Use of Force in International Law: Tlioughts on a 
Normative Framework, 37 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 885 (1999); Mark 
Russell Shulman, Legal Constraints on Information Warfare, Occasional Paper No. 7, Center 
for Strategy and Technology, Air War College, Maxwell Air Force Base (March 1999); and 
Office of the General Counsel, Department of Defense, An Assessment of International Legal 
Issues in Information Operations (Nov. 1999). The latter paper is appended to this volume as the 
Appendix. 

2. See Sheldon Glueck, The Nuremberg Trial and Aggressive War 105 (1946) 

("Since the initiation and conduct of such a war of aggression is at least unlawful, all acts of warfare 
in pursuance thereof — whether they violate the laws and customs of war or do not do so — are 
illegal. They also become critninal in considering the effect of illegality upon the defense of 
justification' in criminal law."). 

3. See Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to 
the Protection of Victims of International Armed Conflicts, art. 44(3), Dec. 12, 1977, 1125 
U.N.T.S. 3 [hereinafter Protocol I]. 

4. The 1977 Protocols to the Geneva Conventions were criticized by some for the suggestion 
that guerrillas should only be required to distinguish themselves en route to an attack. See Colonel 
G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 1971 BRITISH 



230 



Ruth Wedgwood 



Yearbook of International Law 173, reprinted in Reflections on Law and Armed 

CONFLICTS: THE SELECTED WORKS ON THE LAWS OF WAR BY THE LATE PROFESSOR 
COLONEL G.I.A.D DRAPER, OBE (Michael Meyer and Hilaire McCoubrey eds., 1998). 

5. It is worth recognizing that the law of war has both rules and principles — or, if you like, 
self-executing rules that require little interpretation, and others that are highly fact specific and 
context sensitive in their application. In a report of experts assessing the 1999 NATO bombing 
campaign in Yugoslavia, prepared for the prosecutor of the International Criminal Tribunal for the 
former Yugoslavia, it was noted that "[e]veryone will agree that a munitions factory is a military 
objective and an unoccupied church is a civilian object. When the definition is applied to dual-use 
objects which have some civilian uses and some actual or potential military use (communications 
systems, transportation systems, petrochemical complexes, manufacturing plants of some types), 
opinions may differ. The application of the definition [of civilian object] to particular objects may 
also differ depending on the scope and objectives of the conflict. Further, the scope and objectives 
of the conflict may change during the conflict." See Final Report to the Prosecutor by the 
Committee Established to Review the NATO Bombing Campaign Against the Federal Republic 
of Yugoslavia, para. 37, www.un.org/icty/pressreal/nato061300. htm. 

6. The Martens Clause noted that "[u]ntil a more complete code of the laws of war has been 
issued, the high contracting parties deem it expedient to declare that, in cases not included in the 
Regulations adopted by them, the inhabitants and the belligerents remain under the protection and 
the rule of the principles of the law of nations, as they result from the usages established among 
civilized peoples, from the laws of humanity, and from the dictates of public conscience." See 
Convention respecting the Laws and Customs of War on Land and Annex: Regulations respecting 
the Laws and Customs of War on Land, in PROCEEDINGS OF THE HAGUE PEACE 
CONFERENCES 620-631 (1920). This reunion of law and conscience may disturb positivists, but is 
not so dissimilar from the working sources of customary legal norms in other social contexts. 

7. Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV), 
Aug. 12, 1949, arts. 15, 18, and 19, 6 U.S.T. 3516, 75 U.N.T.S. 287 (entered into force Oct. 21, 
1950; entered into force for the United States Feb. 2, 1956). 

8. Protocol I, supra note 3, and Protocol Additional (II) to the Geneva Conventions of 12 
August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, 
June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978). 

9. Rome Statute of the International Criminal Court, art. 8(2)(b)(iv), U.N. Doc. 
A/CONF.183/9* (July 17, 1998) [hereinafter Rome Statute]. 

10. Report of the Preparatory Commission for the International Criminal Court, Finalized 
draft text of the Elements of Crimes, U.N. Doc. PCNICC/2000/l/Add.2 (Nov. 2, 2000), art. 
8(2)(b)(iv), para. 2 and note 36. 

11. Rome Statute, supra note 9, art. 8(2)(b)(iv). 

12. Finalized draft text of the Elements of Crimes, supra note 10, art. 8(2)(b)(iv), para. 3 and 
note 37. 

13. Final Report to the Prosecutor, supra note 5, para. 48. 

14. This leaves open the question, however, whether diminishing civilian morale is a legitimate 
war aim. 

15. Protocol I, supra note 3, art. 52. 

16. See Rome Statute, supra note 9, art. 8(2)(b)(ii), and Elements of Crimes, supra note 10, art. 
8(2)(b)(ii) 

17. A "first strike" against an adversary's computer systems, as part of anticipatory self-defense, 
is another possibility that we may imagine. The disruption of a national computer network may 
disrupt an adversary's military communications, military mobilization, the processing of targeting 
information, and other vital military functions. But the attack may also present the same "dual 
server" problems discussed above. The same preventative measures of benign espionage and a 



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Proportionality , Cyberwar, and the Law of War 



dynamic conception of proportionality (permitting greater damage with speedy restoration) may 
be called for. 

18. War and peace entertain different standards for lethal force in enforcement measures. In 
civilian societies, the use of lethal force is generally limited to the prevention of immediate deadly 
harm, with a high threshold of knowledge. In a state of war, the threshold for using force is lower. 
The identification of combatants is made on the basis of information reasonably available in the 
situation. A foot soldier will rarely be expected to use the sparing rules of engagement of a civil 
policeman. 

19. See Draft Convention on Cyber-Crime and Explanatory Memorandum Related 
Thereto, Council of Europe, European Committee on Crime Problems, Strasbourg, France, 
June 29, 2001, www.conventions.coe.int/Treaty/EN/projets/FinalCybercrime.htm and 
www. conventions. coe.int/Treaty/EN/projets/FinalCyberRapex. htm. 



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Neutrality and Information Warfare 



George K. Walker 1 



un 



r^ 



here is nothing new about revising neutrality; it has undergone an 
almost constant process of revision in detail," Philip Jessup con- 
cluded in 1936. 2 He also believed 



. . . [N]othing could be more fallacious than the attempt to test the application of 
rules of neutrality by the principles of logic. Since they are products of 
compromise and of experience, logic has found practically no place in their 
development and cannot properly be used in their application. 3 

Over half a century into the UN Charter era, little would change these obser- 
vations, even in the information warfare (IW) 4 context. New considerations 
have appeared, 5 including the Charter itself; the process of analyzing the law of 
neutrality defies a straightforward, positivist, black-letter approach. Principles of 
neutrality for maritime warfare have been seen to be less rigid, from an historical 
perspective, than those for air or land warfare, 6 for example. 

Some claim neutrality is in "chronic obsolescence. " 7 A major reason, accord- 
ing to those who say future applications of the law of neutrality will be minimal, 
is an argument that the Charter has ended the rights and duties of the old law of 
neutrality. 8 Another argument is that since the Charter has outlawed war, 9 there 
can be no state of war, and therefore there is no need for a law of neutrality. 10 



Neutrality and Information Warfare 



(This position might be considered in light of the Pact of Paris [1928], outlawing 
aggressive war. 11 World War II began a decade later.) 

Many others, reflecting State practice and claims in the Charter era, maintain that 
the law of neutrality continues to exist. The San Remo Manual recognizes maritime 
neutrality. 12 The 1992-96 International Law Association Committee on Maritime 
Neutrality studied neutrality, and the 1998 ILA conference accepted the Commit- 
tee's final report. 13 Individual researchers assert that neutrality remains a valid legal 
concept, albeit modified by the impact of the Charter and other considerations. 14 

Like the reports of Mark Twain's passing, accounts of neutrality's demise in 
the Charter era have been greatly exaggerated, as the ensuing analysis of the ap- 
plication of neutrality principles to information warfare demonstrates. 

Application of the Principles of the Law of Neutrality 
to Information Warfare 

The law of warfare has little, if any, direct reference to problems of armed 
conflict involving IW. The Charter applies across the board to all treaties, and 
perhaps customary law as well. 15 Although there are a few treaties with some 
bearing on transmission of information, e.g., Hague V and XIII, in most cases 
the analysis must proceed from general custom, general principles, and analysis 
by analogy. General principles of law occupy an anomalous position among 
sources of international law. Although the Statute of the International Court of 
Justice lists them among primary sources that may be cited in cases before the 
Court, 16 and some commentators include them among primary sources for de- 
riving rules of law, 17 others accord them secondary status, perhaps as 
gap-fillers. 18 Whichever view one might take, in a new and fast-moving area of 
the law where there are few guideposts, resort to general principles of law, and 
commentators that discuss them, 19 may be the only sources that are available. 

What then should be the method of analysis for IW issues? 

The first and primary rule should be application of mandatory Charter norms, 
e.g., the right of self-defense, with, e.g., its limitations of necessity and propor- 
tionality for reaction in self-defense, 20 or UN Security Council decisions. 21 The 
next level of analysis should employ the mixture of treaties, custom, etc. that 
must apply in specific neutrality situations. For example, if Hague V and XIII 
principles applicable to telecommunications are customary law, they should 
be applied, perhaps alongside general law of armed conflict (LOAC) principles 
such as necessity and proportionality in a given situation, except where there is a 
prohibitory rule, e.g., no first use of poison gas, for which there can be no 
proportionality or necessity qualifications. 22 In applying these principles to the 

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George K. Walker 



modality of transmitting Internet messages, States will indirectly affect use of and 
messages through the Internet. The fact that cables may be used for Internet- 
based messages as well as traditional telephone or telegraph messages can be ne- 
cessity and proportionality factors. 

Where there is no "hard law," i.e., black-letter rules governing conduct, re- 
sort must be had to general customary LOAC principles, i.e. military objective, 
necessity and proportionality, which may be different from similar principles to 
be observed in self-defense responses. 23 The content of the law for these situa- 
tions might be informed by analogies from custom, treaties and principles ap- 
plied in the law of land, sea, air and space law. As will be seen, the law of the sea 
(LOS) and the law of naval warfare may offer the most and best analogies for 
neutrals in IW situations. 

Neutrality, Land Warfare, and Information Warfare 

The implications for IW from the law of neutrality relating to neutral land 
territory are several. The Charter may impact decisions on the law of neutrality, 
and treaty suspension or termination principles may apply for international 
agreements other than those dealing with warfare. 24 The Security Council may 
make legally binding decisions under Articles 25 and 48 of the Charter, and 
therefore may obligate UN Members under Articles 41-42 to take action that 
might be inconsistent with traditional neutrality principles. The Council also 
may make nonbinding "califs] upon" Members under Articles 40-41. It also 
may make nonbinding recommendations under Articles 39-40. If Council deci- 
sions differ from traditional neutrality principles, the latter must give way. 25 If 
Council or General Assembly resolutions are at variance from traditional neu- 
trality principles, and restate customary or other binding sources of law, 26 these 
resolutions also will affect the traditional law of neutrality. 27 

Thus, Council decisions may compel a State to behave inconsistently with 
traditional neutrality practice by requiring what would otherwise be belligerent 
acts or by restricting rights neutrals traditionally enjoy. 28 Nevertheless, belliger- 
ent attacks must be conditioned on general warfare principles of military objec- 
tive, necessity, and proportionality. 29 

A neutral has a duty to prevent use of its territory for a belligerent's opera- 
tions, base, or as a sanctuary. 30 The activity, depending on personnel involved, 
e.g., belligerent forces operating the Internet computer, may be a violation of 
the neutral's territorial integrity under the Charter. 31 If a neutral knows or has 
reason to know of activity within its territory involving Internet use that is 
non-neutral in nature, the neutral must act to end that activity under the LOAC, 

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Neutrality and Information Warfare 



and may invoke the Charter if the activity involves a violation of the neutral's 
territorial integrity. If a neutral may be required to mobilize forces to ensure ful- 
fillment of its responsibility to prevent belligerent forces from crossing into neu- 
tral territory, and thus act in self-defense, 32 by analogy it may be argued that a 
neutral may mobilize or order its forces to counter an Internet attack conducted 
from its territory, even if a belligerent's forces are not involved. If war materials 
and supplies belonging to a belligerent, either as a matter of title or use, are em- 
ployed in an Internet attack while situated within a neutral's borders, the neutral 
can act against the materials and supplies. If belligerent forces operate the com- 
puters, etc., the case for neutral action is stronger. 

If a neutral does not or cannot effectively enforce compliance, an aggrieved 
belligerent may take proportional action, either under the law of self-defense or 
the LOAC, to counter these Internet activities. 33 Of course, there is a risk that 
the neutral may assert a violation of its territorial integrity by the aggrieved bel- 
ligerent and resort to self-defense measures. 34 In these situations, an aggrieved 
belligerent's prior notice to the neutral may be prudent, unless the neutral is seen 
to be cooperating with the offending belligerent. 

If belligerents may not build radio stations on neutral territory, by analogy 
they cannot use Internet "stations" in neutral territory, and a neutral must shut 
these down. 35 If a neutral does not have the means, or the willingness to do so, an 
aggrieved belligerent may take proportional action. 36 It would seem, however, 
that if neutrals need not control their own stations, or acts of their nationals act- 
ing in a private capacity, 37 then there is no obligation to do the same for Internet 
information thus passed to a belligerent under the Hague law. Query whether 
the pattern of neutrals' controlling radio stations in two World Wars 38 gives cre- 
dence to establishing a customary norm obliging neutrals to do so in future 
conflicts. 

The land warfare rules for railway rolling stock offer an interesting parallel. 
Hague V provides that belligerents may not requisition railway rolling stock of 
companies chartered by a neutral State except if absolutely necessary. 39 How- 
ever, if a private company chartered by a neutral consents to the stock's use for 
warlike purposes, the stock acquires enemy character and may be seized and ap- 
propriated as though it is enemy State property. 40 If a belligerent may not use 
neutral-owned rolling stock unless absolutely necessary but may seize stock a 
belligerent uses for carrying war goods, could it not be argued by analogy that a 
belligerent may not "seize" neutrals' Internet transmissions except in emer- 
gency, but that if the neutral allows the Internet to be used for messages harmful 
to the belligerent, those aspects of the Internet are fair game? 

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George K. Walker 



Humanitarian law allows a neutral to authorize passage of wounded and sick 
from belligerent forces if vehicles transporting them carry no combatants or war 
materials. If a neutral allows passage, the neutral assumes responsibility for pro- 
viding for control and safety of these personnel. 41 If a neutral has discretion to 
authorize passage for belligerents' sick and wounded armed forces personnel 
while assuming responsibility for their control and safety, it would seem that the 
neutral may, but is not required to, allow Internet messages regarding belligerent 
sick and wounded, if the neutral can be sure that no information affecting the 
war is passed home. 42 Similarly, a prisoner of war staying in neutral territory 43 
may not be allowed Internet access to send information home that amounts to 
belligerent activity, any more than the prisoner of war should be allowed to mail, 
telephone, televise, etc., such information. 

Neutrality at Sea, Naval Warfare, and Information Warfare 

The same Charter principles applicable to land warfare apply to war at sea, in- 
cluding any IW component. 44 Oceans users, whether neutral or belligerent, 
must pay due regard 45 to other oceans users' rights and freedoms besides the rules 
of naval warfare, which apply in armed conflict situations through the LOS con- 
ventions' other rules clauses. 46 Treaty suspension or termination principles also 
may apply. Although many treaties may bear on IW issues, during armed con- 
flict they may be impossible to perform, 47 fundamental change of circumstances 
may intervene, 48 or there may be a material breach. 49 Jus cogens norms, e.g., per- 
haps the inherent right of self-defense, 50 may trump treaty law. 51 War, or armed 
conflict, may end or suspend treaty obligations. 52 General principles of necessity 
and proportionality in attack govern as in land warfare. 53 

Hague XIII, governing maritime neutrality, imposes virtually the same rules 
as Hague V, governing land warfare, in forbidding belligerent use of neutral 
ports and waters for erecting wireless telegraphy stations or any apparatus for 
communicating with belligerent forces. Belligerents cannot use neutral ports or 
waters as a base of operations. 54 The same considerations and applications of 
these principles in land warfare to I W issues should apply in maritime warfare sit- 
uations. 55 Moreover, because these principles appear in two major multilateral 
treaties and the regional Maritime Neutrality Convention, their common prin- 
ciples are strengthened. 56 

There is an important difference between neutrals' duties with respect to 
movement of belligerent troops across neutral land territory and movement of 
belligerent naval forces into neutral ports and waters. The duty to repel troop 
movements is absolute, while the duty to detect and oust belligerent naval 

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Neutrality and Information Warfare 



forces is subject to the neutral's having the means to do so. 57 A neutral is only 
"entitled," not required, to intern a belligerent warship when that warship 
should have departed neutral waters. 58 When the Hague Conventions were 
signed in 1907, there were many countries that may not have had naval forces 
or detection capability sufficient to oust a belligerent naval force or to intern it. 
There must have been a presumption that any State could use its military or 
other forces, perhaps police, to repel a belligerent troop movement, but that 
might not be the case for naval incursions. The same is true today. For IW 
neutrality principles, it could be argued that the duty of a neutral to act to pre- 
vent belligerent IW warfare from within its territory is not absolute, but condi- 
tional on the ability of the neutral to detect IW activity and to be able to act to 
counter this activity. Not every country has computer and related systems as 
sophisticated as, e.g., the United States, and these countries should not be held 
to an absolute duty. Such being the case, computer-sophisticated nations like 
the United States must be held to the same duty, i.e., use of means at the dis- 
posal of the United States, which might be quite considerable. 

Principles governing destruction of undersea cables strengthen a view that 
belligerents can operate to seize or destroy Internet connections in enemy ter- 
ritory and in areas subject to no State's sovereignty, e.g., the high seas, if a bel- 
ligerent controls that area, e.g., for blockade. Belligerents can seize or destroy 
cables connecting enemy territory with neutral territory, but only a terminus 
in enemy territory. These cables may be seized or destroyed only "in cases of 
absolute necessity," i.e., general principles of necessity and proportionality^ 9 
must be observed. No distinction is made between publicly and privately 
owned cables. 60 Neutrals' control of radio broadcasting within their territorial 
waters during two World Wars 61 is another example of proper control of elec- 
tronic emissions by neutrals within their territories. If neutrals had this obliga- 
tion for radio, the "Internet" of the day, is it not also true for today's World 
Wide Web of communications? 

Issues related to contraband, visit and search or diversion, and the possibility 
of destruction of neutral merchant ships that have acquired enemy character 62 or 
ships or aircraft that are believed to be aiding the enemy although otherwise ex- 
empt 63 might seem to have little to do with IW. However, certain general prin- 
ciples might be derived and used in the IW context. 

Given Internet technology's exponential growth, it would seem extraordi- 
narily useless to go through a lengthy treaty negotiation process to draft an agree- 
ment listing prohibited Internet behaviors or actions that would be as out of date 
as the computers that began to produce the treaty at the start of the drafting and 
negotiation process. This has been the experience of trying to define 

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George K. Walker 



contraband. The lesson from contraband law is that in a fast-developing or 
ever-changing scenario, trying to go beyond general principles is rarely wise, ex- 
cept in the obvious, "hospital ship" or poison gas situation, where everyone 
agrees on the rules, at least for hospital ships if they are not used to further an en- 
emy war effort, and for poison gas as long as there is no use. 64 

If we analogize dealing with Internet messages to neutral merchantmen on 
the high seas, could an electronic "visit and search," followed by appropriate 
proportional and necessary action, perhaps electronic diversion, be devised for 
belligerents to use with neutrals? 65 

If an Internet message or "hack" contributes to enemy war-fighting or 
war-sustaining efforts, assists an enemy's armed forces intelligence system, or 
acts as an auxiliary military or naval channel of communication or information, 
is not the attack and destruction option available, subject to necessity and pro- 
portionality principles? 66 To be sure, perhaps special principles analogous to the 
passenger and crew safety rule when a merchantman must be destroyed, 67 might 
be devised. For example, if messages relating to safety of civilians are involved, 
can they be electronically isolated and allowed through? 

Might an electronic "firewall" analogous to blockade principles in the law of 
naval warfare 68 be devised to let appropriate messages get through? The Internet 
might be used for traditional blockades and other interdictions, besides the usual 
Notices to Airmen (NOTAMs) and Notices to Mariners (NOTMARs) pub- 
lished, e.g., by radio. 

Is it useful to think in terms of specific exemptions for neutral Internet usage? 
Hague XI lists enemy vessels exempt from capture and possible destruction be- 
cause of their nature, among them a debatable exemption for mails as distin- 
guished from mail ships. 69 Would it be helpful to develop exempted computer 
systems, kinds of messages, or Internet systems exempt from "capture" and pos- 
sible destruction unless used to aid an enemy? What about generally exempt 
ships, e.g., hospital ships unless they aid an enemy, that send Internet-based mes- 
sages that might be construed by a belligerent to be encrypted messages? Would 
this raise a suspicion, however unfounded, such that use of Internet-based mes- 
sages by neutral exempt vessels should be banned or somehow restricted? Can 
system segregation be done with today's technology? Is it too early for this? 
Could the Internet itself be used to advise of these exemptions, if a case by case 
basis seems appropriate? 

Might military commanders consider declaring control of immediate areas of 
military operations on the Internet, analogous to the immediate area of naval op- 
erations? 70 To be sure, this kind of declaration may invite more trouble than it is 
worth, i.e., it could tell adversaries where to go. The Internet can, of course, be 

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Neutrality and Information Warfare 



used to send these notices, besides NOTAMs and NOTMARs sent by more tra- 
ditional means for addressees who lack Internet capability, or to assure transmis- 
sion and receipt, i.e., where there is a possibility that an Internet-based message 
did not go through. 

Although it is not part of the law of neutrality, any country can declare tem- 
porary use of the high seas for naval maneuvers, including air operations. 71 
These maneuvers can be conducted during armed conflict. Is there a correla- 
tive right of declaring temporary use of part of the Internet for "IW maneu- 
vers"? Might notice of these IW maneuvers be posted on the Internet besides 
more traditional means, e.g., NOTAMs or NOTMARs? (As in the case of 
warning of immediate area of naval operations during war, such a notice, 
whether by NOTAM or NOTMAR through traditional media or the Inter- 
net, invites attention.) 

Could or should an "Internet exclusion zone" be declared, 72 warning neu- 
trals of higher risk if they "surf in the area or otherwise use the "zone"? Like no- 
tices for immediate areas of naval operations, these warnings could be posted on 
the Internet, as well as by more traditional means, e.g., NOTAMs and 
NOTMARs. (Notice of blockade, immediate area of naval operations, or ex- 
clusion zones, must be effective; 73 while the Internet might be a valuable com- 
munication medium, it cannot replace more traditional and widely available 
methods until it has become as universal as more traditional means; this may be a 
problem for vessels flagged in countries that are not as advanced in Internet tech- 
nology as, e.g., the United States.) 

Could States declare temporary "defense zones" for parts of the Internet 
spectrum, analogous to a high seas defense zone or cordon sanitaire that may be 
announced for an area of naval and air operations, to warn other countries of a 
risk of self-defense responses? This is not a feature of naval warfare but an inci- 
dent of self-defense. 74 And because the technology is still emerging, and any 
treaty now might be premature, 75 down the road when and if the problem set- 
tles down, could agreements modeled on the INCSEA agreements 76 be con- 
sidered to minimize confrontation? Longstanding treaties promoting safety at 
sea offer another model. 77 

Might states proclaim an "Internet Identification Zone" (HZ) for parts of the 
Internet spectrum, analogous to an ADIZ? 78 The IIZ would be a warning, per- 
haps published on the Internet and in other sources to assure notice, of a possibil- 
ity of interception if Internet users approach too close to a neutral State's vital 
interests (analogous to its territory, the anchor for an ADIZ), including, e.g., de- 
fense and central economic communications systems. The ADIZ is not an air 

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George K. Walker 



warfare feature; it serves as an identification method. An IIZ might have a similar 
function. 

I do not have technical competence to respond to these questions, or perhaps 
to ask others, but might they be asked? Some inquiries may be far-fetched or im- 
practical, but given the exponential growth of technology, some of which may 
be shrouded for national security reasons, I ask them. 

The Internet is like a merchant shipping system or the US public highway sys- 
tem. There is no regulation of the Internet akin to systems regulating radio and 
television broadcasting. It is up to the individual or government as to the nature 
of vehicles used (the computers) and, beyond a small access charge paid Internet 
access providers, the user is largely on its own as to how the Internet is employed 
as to content and destination. Therefore, although there may be belligerent and 
neutral rights, perhaps by analogy to those for naval warfare as I have posited 
them, there are relatively few positive duties, apart from a requirement to re- 
spect belligerents' and neutrals' rights, however those may be stated. 

As a final point, the due regard principle, derived from the LOS and its law of 
naval warfare counterpart, 79 might be part of the analysis; i.e., belligerents must 
have due regard for rights of Internet users that are neutral, even as Internet users 
must have due regard for others on the Net in the absence of armed conflict. And 
even as belligerents must have due regard for the maritime environment in to- 
day's wars at sea, might they be required to have due regard for the general 
Internet environment? 

Neutrality, Aerial Warfare, and Information Warfare 

As in the cases of land and sea warfare, Charter principles may apply in given 
situations. 80 Treaty suspension or termination principles may apply. 81 Besides 
air warfare rules, belligerents must observe principles of military objective, ne- 
cessity, and proportionality applying to all modes of war. 82 

Like neutrality rules for land and sea warfare, air warfare rules require respect 
for neutral airspace; belligerent military aircraft cannot enter it. 83 When coupled 
with identical treaty-based neutrality rules applicable to land and sea warfare, 
this principle is strengthened. 84 The Hague Air Rules principle, the same as 
those for land warfare but differing from the weaker requirements for neutrals 
for naval warfare, is that actions taken by a neutral to enforce neutral rights, can- 
not be construed as a hostile act. 85 Since two branches of the law of neutrality 
protect the neutral in its actions to enforce neutrality, particularly since Internet 
activity necessarily ultimately involves the land in terms of sending and recep- 
tion of messages, and the flight of Internet messages through lines might be 

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Neutrality and Information Warfare 



analogized to aircraft flight, should not the rule be that actions taken by a neutral 
should not be deemed a hostile act, and not an unfriendly one, as the law of naval 
warfare has it? A neutral might enforce its rights by an unfriendly act, i.e., a 
retorsion, 86 a lesser action in that it does not involve proportional reprisals, i.e., 
an unlawful act designed to compel compliance. 87 

There is an important difference between neutrals' duties with respect to 
movement of belligerent troops across neutral land territory and movement of 
belligerent naval forces into neutral ports and waters, or movement of belliger- 
ent military aircraft into neutral airspace. The duty to repel troop movements is 
absolute, while the duty to detect and oust belligerent naval or air forces is sub- 
ject to a neutral having the means to do so. 88 When the Hague Conventions 
were signed, many countries may not have had naval forces or detection capabil- 
ity sufficient to oust a belligerent naval force. The same assumption may underlie 
the 1923 Hague Air Rules regarding intruding belligerent military aircraft and 
their internment. There must have been a presumption that any State could use 
its military or other forces, perhaps police, to repel belligerent troop move- 
ments, but that might not be the case for every country for naval or military air- 
craft incursions. The same is true today. For IW neutrality rules, it could be 
argued that a neutral's duty to act to prevent belligerent IW from within its terri- 
tory is not absolute, but conditional on the neutral's ability to detect IW activity 
and to act to counter it. Not every nation has computer and related systems as so- 
phisticated as, e.g., the United States, and these countries should not be held to 
an absolute duty. Such being the case, computer-sophisticated nations like the 
United States must be held to the same duty, i.e., use of means at the disposal of 
the United States, which might be quite considerable. 

A neutral's duty to prescribe a route away from belligerents' military opera- 
tions for aircraft ordered by a belligerent 89 might be seen, by analogous prece- 
dent for IW, to say a neutral must prescribe Internet "routes" not to interfere 
with military operations. The qualifying phrase in the Hague Air Rules, that a 
neutral must exact guarantees, indicates a possible weakness of the prescription, 
however. For IW, if a neutral prescribes a "route," can the neutral enforce the 
prescription, given the Internet's decentralized nature? The Hague Air Rules 
principle that a neutral must, commensurate with the means at its disposal, pre- 
vent aerial observation of belligerent operations, 90 is in the same vein. Should 
neutrality law for IW say that a neutral must, commensurate with the means at its 
disposal, prevent IW observation, through reading Internet traffic, of belligerent 
military operations? 

The Hague Air Rules, like naval warfare rules, allow a belligerent's force 
commander to prohibit neutral aircraft from passing in an immediate vicinity of 

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George K. Walker 



a commander's forces or to make aircraft follow a particular route, if the com- 
mander considers the aircraft is likely to prejudice success of military operations. 
If an aircraft, once notified, refuses to comply, a belligerent may fire on it. 91 In 
the IW context, might a belligerent assert a similar right to prohibit Internet ac- 
tivity in an immediate electronic or physical vicinity of military operations, or 
direct that Internet traffic follow routes? Can the belligerent "shoot down" non- 
complying Internet traffic, using proportional means, coming close to military 
Internet operations, after notice? Might notice of these areas of operations be 
posted on the Internet besides more traditional means? (A correlative problem is 
that any radio or Internet message invites attention to the location of belligerent 
forces.) 

Although it is not part of the law of neutrality, any country can declare tem- 
porary use of the high seas for naval maneuvers, including air operations. 92 
These maneuvers can be conducted during armed conflict. Is there a correlative 
right of declaring temporary use of part of the Internet for "IW maneuvers"? 
Might notice of these "maneuvers" be posted on the Internet? (As in the case of 
the warning of the immediate area of naval operations during war, such a notice, 
whether by NOTAM or NOTMAR through traditional media or the Internet, 
invites attention.) 

Exclusion zones for neutral aircraft as well as ships, reasonable in scope and 
duration and which are properly noticed, are a valid method of warfare at sea to- 
day. They are not free-fire zones but are designed to warn neutral aircraft of 
heightened danger if they enter a zone. 93 Might an "IW exclusion zone" with 
similar qualifications be declared to warn Internet users of a heightened risk of 
being "fired on" if they venture into certain "areas" of the Internet? Might no- 
tice of these zones by NOTAMs and NOTMARs be posted on the Internet be- 
sides more traditional means? 

Could States declare temporary "defense zones" for certain parts of the 
Internet spectrum, analogous to a high seas defense zone or cordon sanitaire that 
may be announced for an area of air operations, to warn other countries of a risk 
of self-defense responses? This is not a feature of air warfare but an incident of 
self-defense. Here too INCSEA and safety of life at sea treaties could be models 
for advance agreements for these situations. 94 

Might States proclaim an "Internet Identification Zone" (HZ) for certain 
parts of the Internet spectrum, analogous to the ADIZ? 95 The IIZ would be a 
warning, perhaps published on the Internet and in other sources to assure notice, 
of a possibility of interception if Internet users approach too close to a neutral 
State's vital interests (analogous to its territory, the anchor for an ADIZ), includ- 
ing, e.g., its defense and central economic communications systems. The ADIZ 

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Neutrality and Information Warfare 



is not a feature of air warfare; it serves as an identification method. The IIZ might 
have a similar function. 

Neutrality and Information Warfare in Space 

There is little new "hard law" in norms applicable to conflict in outer 
space, 96 other than applying Charter law, 97 the law of suspension or termina- 
tion of treaties, 98 and general principles of necessity and proportionality, and 
perhaps due regard in some cases, applying to armed conflict anywhere. 99 
There is no special neutrality law like that applying to land, sea, or air warfare. 
Any law of neutrality applicable to IW in space must be derived by analogy 
from these other sources, as was the case before agreements like the Outer 
Space Treaty, the Liability Convention, the Registration Convention, etc., 
were negotiated. 100 And it is this general methodology that may be the most 
useful. If law for outer space could be derived by analogy from other systems 
before formal treaties appeared, cannot the same be said for IW? Which legal 
system(s) should supply the model (s)? 

Conclusions: Appraisal of Neutrality in the Charter Era 
in the Context of Information Warfare 

As the manned space flight era became a reality, commentators recom- 
mended applying other, well-established law to space age situations by analogy. 
UN Charter law applies to situations in space, as it does for interactions on land, 
at sea, and in the air. Today treaties, and practice pursuant to them, govern many 
other aspects of space interactions, but not all of them. These agreements are 
subject to Charter law primacy and to law of treaties rules for suspension or ter- 
mination. Beyond the treaties, some space law issues remain unresolved, and ap- 
plying other systems of law by analogy seems to be the norm. 

Internet warfare issues involving neutrals, and the law to be applied to them, 
seem close to the situation for warfare in space. Charter-based norms, e.g., pro- 
hibition against violating States' territorial integrity or political independence, 
the right of self-defense and the primacy of Security Council decisions, must be 
applied. There are telecommunications treaties to which Charter norms and law 
of treaties rules for suspension and termination are subject. Some LOAC princi- 
ples, e.g., those related to telegraphy, will apply to Internet messages as well as 
more conventional communications, although these are also subject to Charter 
norms, e.g., self-defense. Beyond these relatively well-established norms, there 
are many principles, primarily in the law of naval warfare but also some from the 

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George K. Walker 



law of land and air warfare, that may be cited by analogy in IW situations involv- 
ing neutrals. 

Undeniably neutrality as a general concept has as much vitality today as in the 
pre-Charter era. The claim, that there is a customary right to assert an intermedi- 
ate status of nonbelligerency between traditional neutrality and belligerency, 
may have been strengthened since 1945, although most States and commenta- 
tors do not recognize it. The precedents in some cases are almost identical with 
those in the last two centuries. Even if nonbelligerency cannot be asserted as a 
customary norm, the overlay of principles of self-defense, retorsion, reprisals not 
involving use of force, and state of necessity apply to support actions at variance 
with a practice of strict neutrality in the traditional sense. 101 

Because of options under the Charter for non-binding resolutions by the Se- 
curity Council and perforce the General Assembly, the potential for exceptions 
even with a binding Council decision and the opportunity for claims of neutral- 
ity — perhaps modified by a new non-belligerency concept in the Charter 
era — remains large. "Far from being moribund, these traditional rights [of neu- 
trality and self-defense] apply logically in conditions of limited wars" — the type 
of conflicts that have beset the planet since 1945 — even more rigorously than in 
conditions of total war. 102 

The advent of information war may call for modifying Jessup's remarks pub- 
lished in 1936 when the world was recovering from a world war and preparing 
for the next one. 103 Transoceanic communication was dependent on undersea 
cables for urgent messages, although radio signals could also reach across the seas. 
The most advanced countries had cross-border telephone and telegraph access 
by landlines. Most transoceanic communications went by ship, although the first 
international air mail deliveries were beginning for transoceanic and transconti- 
nental communications. However, the usual means of communication then for 
most messages was what we call "snail mail" today. The Internet was a Cold War 
creation. 104 Today, Jessup might say that although the basic neutrality rules re- 
main in place and they apply for IW, their application for IW must be by 
analogy. 

One option is a non-law analysis 105 although that alternative is less than fash- 
ionable today, given a tendency to find some law (perhaps publicist's views if 
there is no customary law, treaty, or general principle available). 106 Commenta- 
tors correctly assert that it is almost universally accepted that a considerable body 
of law applies to States' use of force in cyberspace contexts. 107 If that is true, a 
correlative is that the considerable body of traditional neutrality law, some of it 
restated in treaties of longstanding duration that are now almost universally rec- 
ognized as declaring custom, and the rest in customary norms or general 

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Neutrality and Information Warfare 



principles, also exists. If we choose to operate in the context of law, under a rule 
of law, the law of neutrality developed for more traditional warfare modalities 
offers useful analysis by analogy where there are no positive standards, e.g., rules 
governing cables. 

Today one exception to the traditional law is Charter law, e.g., the inherent 
right to individual and collective self-defense, which predates the Charter. 
Others include prohibitions against violating a State's territorial integrity, and 
the primacy of UN Security Council decisions. 108 Another might be human 
rights, although human rights treaties' derogation clauses reflect traditional 
rules of suspension or termination during international armed conflict. 109 The 
policies of peacetime telecommunications treaties, although perhaps limited in 
application during armed conflict because of their terms or because of general 
rules of treaty suspensions or termination, are another. 110 Analysis of IW issues 
in a context of the law of neutrality as it applies to land, sea, and air warfare re- 
veals common denominators and differences. For example, belligerents have a 
duty not to cross neutral's land territory by land or air, or to use neutral land or 
seas (i.e., the territorial sea) for a base of operations. 111 A neutral's duty to repel 
these incursions varies with the modality of incursion. If it is by land, there is 
apparently an absolute duty, at least to try. If the incursion is by belligerent air 
or naval forces, the neutrals' duty is relative. It must use the means at its dis- 
posal to counter an incursion, including means at its disposal to intern an in- 
truding aircraft and those aboard. A neutral may elect to detain a belligerent 
warship that has remained in port when it is not entitled to stay there. Un- 
doubtedly the 1907 Hague drafters, and the 1923 Commission of Jurists that 
prepared the Hague Air Rules, believed every country had some semblance of 
ground forces to repel a belligerent's troop movements across neutral lands, but 
that not every State had the means of detecting or repelling incursions by air or 
sea, or of interning belligerent military vessels or aircraft. 112 The "means at a 
neutral's disposal" principle should be the test for a neutral's duty for 
belligerents' IW incursions; the neutral should be held to apply the means at its 
disposal to detect and repel these incursions. Such being the case, the correla- 
tive right of a belligerent aggrieved by IW incursions should be that the bellig- 
erent may take such actions as are necessary in the territory of a neutral that is 
unable (or perhaps unwilling) to counter enemy IW force activities, making 
unlawful use of that territory, a principle from the law of naval warfare. 113 

Beyond these general rules applying to neutrality in a context of all warfare 
modes, the rules begin to diverge among the different kinds of armed conflict, 
the closest kinship being seen between the law of naval warfare and aerial war- 
fare, particularly naval warfare. From a geographic perspective, these mediums 



246 



George K. Walker 



for combat offer more persuasive reasons for analogy to IW. Both are concerned 
with "fluid" mediums, like the Internet's electronic pathways. 114 The law of na- 
val warfare is concerned with warfare on the high seas, a part of the globe that is 
no nation's property. It also is concerned with ocean areas over which coastal 
States may exercise sovereignty, i.e., the territorial sea; or jurisdiction, i.e., the 
exclusive economic zone (EEZ). There is also a relatively well-developed set of 
rules or general principles in the LOS and the law of naval warfare upon which 
analogies for IW may be drawn. 115 Closer examination of the LOS and the law 
of naval warfare in connection with and its interfaces with Charter law, the LOS 
and treaty termination or suspension principles may produce analogies suitable 
for developing IW principles. 

The LOAC is replete with notice requirements. 116 The new technology 
might be employed to give notice, adequate under the circumstances, in tradi- 
tional warfare situations in addition to the usual means of doing so. Given IW 
technology's fluidity and exponential growth, the relative lack (thus far) of prac- 
tice in IW situations, and the relatively minimal number (again thus far) of claims 
and counterclaims 117 in the worldwide electronic arena, any international 
agreement(s) on IW would likely be obsolete in terms of hardware and practice 
before their ink would be dry. 1 18 Haphazard as the prospect may be, rules for IW 
should be left to developing customary norms and general principles, perhaps 
with help from commentators, 1 19 before serious consideration of a treaty begins. 

Notes 

1 . Parts of this chapter have been adapted from GEORGE K. WALKER, THE TANKER WAR 
1980-88: LAW AND POLICY (Vol. 74, US Naval War College International Law Studies) chs. 3, 5 
(2000); George K. Walker, Maritime Neutrality in the Charter Era, 17 CENTER FOR OCEANS LAW 
AND POLICY PROCEEDINGS 124 (1993) [hereinafter Walker, Maritime Neutrality]. 

2. Philip C. Jessup, Neutrality: Today and Tomorrow 156 (1936). 

3. Id. at 16, quoting PHILIP C. JESSUP & FRANCIS DEAK, NEUTRALITY: THE ORIGINS 
xiii-xiv (1935). Oliver WendeD Holmes wrote in similar vein that a page of history is worth a 
volume of logic and that the life of the law has not been logic but experience. New York Trust Co. v. 
Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.); OLIVER WENDELL HOLMES, THE COMMON 
LAW 5, 244 (Mark DeWolfe Howe ed. 1963). 

4. Information warfare (IW) is information operations (IO), i.e., actions taken to affect 
adversary information and information systems while defending one's own information and 
information systems, conducted during crisis or conflict to achieve or promote specific objectives 
over a specific adversary or adversaries. Joint Chiefs of Staff, Joint Pub 1-02, Dictionary of Military 
and Associated Terms 422 (2001). See also WALTER G. SHARP, SR., CYBERSPACE AND THE USE 
OF FORCE 23-24 (1999) [hereinafter SHARP]. 

5. E.g., Myres S. McDougal & Florentino Feliciano, Law and Minimum 
World Public Order ch. 5 (1961); Nils Orvik, The Decline of Neutrality 

1914-1941 ch. 6 (2d ed. 1971); Walter L. Williams, Jr., Neutrality in Modern Armed Conflict: A 

247 



Neutrality and Information Warfare 



Survey of the Developing Law, 90 MILITARY LAW REVIEW 9 (1980) consider a multi-factor 
approach to neutrality law and its place in the law of war (LOW), i.e., the law of armed conflict 
(LO AC) . (The ensuing analysis cites the LOW and the LO AC interchangeably and also refers to 
"war" and "armed conflict" interchangeably. More conventional analyses include, e.g., 

Annotated Supplement to The Commander's Handbook on the Law of Naval 
OPERATIONS ch. 7 (A. Ralph Thomas and James C. Duncan eds., 1999) (Vol. 73, US Naval War 
College International Law Studies) (Annotated Supplement); D.W. BOWETT, SELF-DEFENCE IN 

International Law ch. 8 (1958); IanBrownlie, International Law and the Use of 
Force by States (1963); Erik Castren, The Present Law of War and Neutrality 
ch. 3 (1954); C.John Colombos, The International Law of the Sea chs. 16-21 (6th 

rev. ed. 1967); YORAM DlNSTEIN, WAR, AGGRESSION AND SELF-DEFENCE chs.l.D, 6.D (3d 
ed. 2001); JURG MARTIN GABRIEL, THE AMERICAN CONCEPTION OF NEUTRALITY AFTER 
1941 (1988); MORRIS GREENSPAN, THE MODERN LAW OF LAND WARFARE chs. 13-14 

(1959); 7 Green H. Hackworth, Digest of International Law ch. 24 (1943); 3 
Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied 
by the United States Tit. K (2d ed. 1945); Hans Kelsen, Collective Security Under 
INTERNATIONAL LAW 154-71 (Vol. 49, US Naval War College International Law Studies) 
(1954); Hans Kelsen, Principles of International Law 154-73 (Robert W. Tucker ed. 

2d ed. 1967); 2 D.P. O'CONNELL, LAW OF THE SEA ch. 30 (1984); 2 LASSA OPPENHEIM, 
INTERNATIONAL LAW, Part III (Hersch Lauterpacht ed., 7th ed. 1952); JOHN F.L. ROSS, 

Neutrality and International Sanctions: Sweden, Switzerland and 
Collective Security (1989); Julius Stone, Legal Controls of International 
Conflict chs. 13-19, 21 (1959); Robert W. Tucker, The Law of War and 

NEUTRALITY AT SEA chs. 6-12 (Vol. 50, US Naval War College International Law Studies) 
(1955); 1 1 MARJORIE M. WHITEMAN, DIGEST OF INTERNATIONAL LAW ch. 33 (1968); Michael 
Bothe, Neutrality at Sea, ch. 6 in IGE F. DEKKER & HARRY H.G. POST, THE GULF WAR OF 
1980-88 (1992); Michael Bothe, Neutrality in Naval Warfare: Wlxat Is Left of Traditional Law?, in 

Humanitarian Law of Armed Conflict: Challenges Ahead 387 (AstridJ.M. Delissen 

& Gerard J. Tanja eds. 1971); Francis Deak, Neutrality Revisited, in TRANSNATIONAL LAW IN A 

Changing Society: Essays in Honor of Philip C. Jessup 137 (Wolfgang Friedman et al. 

eds. 1972); Andrea Gioia, Neutrality and Non- Belligerency, in INTERNATIONAL ECONOMIC LAW 
AND ARMED CONFLICT 51 (Harry H.G. Post ed. 1994); Andrea Gioia &: Natalino Ronzitti, Tlic 
Law of Neutrality: Third States' Commercial Rights and Duties, ch. 7 in DEKKER & POST, supra; Mark 
W. Janis, Neutrality, ch. 6, in THE LAW OF NAVAL OPERATIONS (Horace B. Robertson, Jr. ed., 
1991) (Vol. 64, US Naval War College International Law Studies); Titus Komarnicki, Tlie Place of 
Neutrality in the Modern System of International Law, 80 RECUEIL DES COURS DE L'ACADEMIE DE 
DROIT INTERNATIONAL 395 (1952); J.F. Lalive, International Organizations and Neutrality, 24 

British Yearbook of International Law 72 (1972); John H. McNeill, Neutral Rights and 

Maritime Sanctions: The Effects of Two Wars, 31 VIRGINIA JOURNAL OF INTERNATIONAL LAW 
631 (1991); Patrick M. Norton, Between the Ideology and the Reality: Tlic Shadow of the Diw of 
Neutrality, 17 HARVARD INTERNATIONAL LAW JOURNAL 249 (1976); Dietrich Schindler, 
Transformations in the Law of Neutrality Since 1945, in HUMANITARIAN LAW, supra, at 367; Frank L. 
Wiswall, Jr., Neutrality, the Rights of Shipping and the Use of Force in the Persian Gulf, 31 VIRGINIA 

Journal of International Law 619 (1991). 

6. CASTREN, supra note 5, at 427. 

7. Janis, supra note 5, at 148, citing NEILL H. ALFORD, JR., MODERN ECONOMIC 
WARFARE) 326 (1963 (Vol. 56, US Naval War College International Law Studies); see also 
Norton, supra note 5, at 249, citing Richard R. Baxter, Humanitarian Law or Humanitarian Politics 7 
The 1974 Conference on Humanitarian Law, 16 HARVARD INTERNATIONAL LAW JOURNAL 1.2 
(1975) (Neutrality has had a "juridical half-life" since World War II). 



248 



George K. Walker 



8. Janis, supra note 5, at 148, citing C.G. Fenwick, Is Neutrality Still a Term of Present Law? , 63 

American Journal of International Law 102 (1969). 

9. Cf UN Charter, preamble, arts. 2(3)-2(4); see also LELAND M. GOODRICH ET AL., 

Charter of the United Nations 19-25, 41-55 (3d ed. 1969); Bruno Simma, The 
Charter of the United Nations 45-48, 97-128 (1994). 

10. GABRIEL, supra note 5, at 69; see also ORVIK, supra note 5, at 251-56. 

1 1 . Treaty Providing for Renunciation of War As an Instrument of National Policy, Aug. 27, 
1928, arts. 1-2, 46 Stat. 2343, 2345-46, 94 L.N.T.S. 57, 63 (Pact of Paris); see also infra note 15 and 
accompanying text. 

12. See SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED 
CONFLICTS AT Sea 68, f| 13(d), 14-26, 29-32, 34-36, 67-71, 74-75, 86-88, 92-94, 99, 106, 
109, 111, 113-16, 118-20, 122-24, 126-27, 130, 132-34, 146-58 (Louise Doswald-Beck ed. 
1995) [hereinafter SAN REMO MANUAL]. 

13. See International Law Association, International Committee on Maritime Neutrality, 
Neutrality and Naval Warfare (Michael Bothe, rptr.), in International Law Association, Report of 
the Sixty-Fifth Conference: Cairo, Egypt 163 (1993); International Law Association, International 
Committee on Maritime Neutrality, Neutrality and Naval Warfare (Michael Bothe, rptr.) in 
International Law Association, Report of the Sixty-Sixth Conference: Buenos Aires, Argentina 
570 (1994); International Law Association, International Committee on Maritime Neutrality, 
Neutrality and Naval Warfare (Michael Bothe, rptr.; Wolff Heintschel von Heinegg, alt. rptr.), in 
International Law Association, Report of the Sixty-Seventh Conference: Helsinki, Finland 367 
(1996); International Law Association, Committee on Maritime Neutrality, Final Report: Helsinki 
Principles on the Law of Maritime Neutrality (Dietrich Schindler, chair; von Heinegg, rptr.), in 
International Law Association, Report of the Sixty-Eighth Conference Held at Taipei, Taiwan, 
Republic of China 496 (1998) (Helsinki Principles). For a critique of the Cairo report, see Walker, 
Maritime Neutrality, supra note 1 . 

14. E.g., COLOMBOS, supra note 5, § 759; McDOUGAL & FELICIANO, supra note 5, at 
197-436; 2 O'CONNELL, supra note 5, at 1141-42; Bothe, Neutrality at Sea, supra note 5, at 205; 
Thomas A. Clingan, Jr., Submarine Mines in International Law, in Robertson, supra note 5, at 351, 
352 (argument that neutrality no longer exists is specious); Gioia & Ronzitti, supra note 5, at 223; 
Vaughan Lowe, The Commander's Handbook of the Law of Naval Operations, in Robertson, supra note 
5, at 109, 134-38; McNeill, supra note 5, at 642-43; Natalino Ronzitti, The Crisis of the Traditional 
Law Regulating International Armed Conflicts at Sea and the Need for Its Revision, in THE LAW OF 
NAVAL WARFARE; A COLLECTION OF AGREEMENTS AND DOCUMENTS 1,6-12 (Ronzitti ed. 
1988); Williams, supra note 5, at 47-48; Wiswall, supra note 5, at 619. Even commentators arguing 
that the force of the law of neutrality has been greatly diminished do not say it has disappeared in 
the Charter era. See, e.g., ALFORD, supra note 7, at 326; Janis, supra note 5, at 153; Norton, supra 
note 5, at 311. 

15. UN Charter, art. 103. In 1928 the Pact of Paris was concluded, supra note 11. Subject to 
later agreements such as the Charter, the Pact remains in force today. See Pact of Paris, supra note 
11, arts. 1-2, 46 Stat. 2343, 2345-46, 94 L.N.T.S. 57, 63; UN Charter, art. 103; United States 
Department of State, Treaties in Force 447 (1999) (TIF); GOODRICH ET AL., supra note 9, at 
614-17; SIMMA, supra note 9, at 1116-25. 

16. I.CJ. Statute, art. 38(1). 

17. E.g., IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 1-25 (5th ed. 
1998), citing The Scotia, 81 US (5 Wall.) 170, 181-82 (1872); 1 OPPENHEIM'S INTERNATIONAL 
LAW §§ 9-14 , at 28 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) (1 OPPENHEIM). 

18. Restatement (Third) of Foreign Relations Law of the United States § 

102(3), 102(4) & cmt. f (1987) (RESTATEMENT [THIRD]); GERHARD VON GLAHN, LAW 

Among Nations: An Introduction to Public International Law 20-21 (6th ed. 



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Neutrality and Information Warfare 



1992); Oscar Schachter, International Law in Theory and Practice 50-55 
(1991); cf. ANNOTATED SUPPLEMENT, supra note 5, at xxxvii-xxxviii, ff 5.4-5.4.2 (recognition 
of custom, treaties). 

19. Nearly all agree that qualified scholars are only a secondary source, or are evidence of rules 
of law. I.C.J. Statute, art. 38(l)(d); BROWNLIE, supra note 17, at 24; 1 OPPENHEIM, supra note 17, 
§ 14; RESTATEMENT (THIRD), supra note 18, § 103(2)(c); VON GLAHN, supra note 18, at 21; but 
see Annotated Supplement, supra note 5, at xxxvii-xxxviii, ^J 5.4-5.4.2 (only custom, treaties 
recognized). 

20. UN Charter, arts. 51, 103. This is particularly true if the right to self-defense is a. jus cogens 
norm. To the extent the Charter and action pursuant to it is customary law or perhaps jus cogens, 
later custom or jus cogens might trump inconsistent earlier customary obligations or an older treaty. 
I.C.J. Statute, art. 38(1); Vienna Convention on the Law of Treaties, May 23, 1969, preamble, arts. 
53, 64, 1155, 1159, U.N.T.S. 331, 333, 341 (Vienna Convention). Compare, e.g., Military & 
Paramilitary Activities in & Against Nicaragua (Nicaragua v. United States), 1986 I.C.J. 14, 347 
(Schwebel, J., dissenting) (Nicaragua Case); STANIMAR A. ALEXANDROV, SELF-DEFENSE 

Against the Use of Force in International Law 296 (1996); Bowett, supra note 5, 

187-93; 1 OPPENHEIM, supra note 17, 127; KELSEN, COLLECTIVE SECURITY, supra note 5, at 

27; Timothy L.H. McCormack, Self-Defense in International Law: The Israeli 
RAID ON THE IRAQI NUCLEAR REACTOR 122-24, 238-39, 253-84, 302 (1996); McDOUGAL 
& FELICIANO, supra note 5, at 232-41; OSCAR SCHACHTER, INTERNATIONAL LAW IN 
THEORY AND PRACTICE 152-55 (1991); SHARP, supra note 4, at 33-48 (real debate is the scope 
of the anticipatory self-defense right; responses must be proportional); JULIUS STONE, OF LAW 
AND NATIONS: BETWEEN POWER POLITICS AND HUMAN HOPES 3 (1974); ANN VAN 

Wynen Thomas & A.J. Thomas, The Concept of Aggression in International 
LAW 127 (1972); George Bunn, International Law and the Use of Force in Peacetime: Do U.S. Ships 
Have to Take the First Hit?, 39 NAVAL WAR COLLEGE REVIEW 69-70 (May-June 1986); 
Christopher Greenwood, Remarks, Major Maritime Events in the Persian Gulf War, in Panel, 
Neutrality, The Rights of Shipping and the Use of Force in the Persian Gulf War (Part I), 1988 
American Society of International Law Proceedings 158, 160-61; David K. Linnan, 

Self-Defense, Necessity and U.N. Collective Security: United States and Other Views, 1991 DUKE 

Journal of Comparative and International Law 57, 65-84, 122; Lowe, supra note 14, 
at 127-30; James McHugh, Forcible Self Help in International Law, 25 NAVAL WAR COLLEGE 
PREVIEW 61 (No. 2, 1972); Rein Mullerson & David J. Scheffer, Legal Regulation of the Use of Force, 
in Beyond Confrontation: International Law for the Post-Cold War Era 93, 
109-14 (Lori Fisler Damrosch et al. eds. 1995); John F. Murphy, Commentary on Intervention to 
Combat Terrorism and Drug Trafficking, in LAW AND FORCE IN THE NEW INTERNATIONAL 
ORDER 241 (Lori Fisler Damrosch & David J. Scheffer, eds., 1991); W. Michael Reisman, 
Allocating Competences to Use Coercion in the Post-Cold War World: Practices, Conditions, and Prospects, 
in id. 25, 45; Horace B. Robertson, Jr., Contemporary International Law: Relevant to Today's World?, 
45 NAVAL WAR COLLEGE RJEVIEW 89, 101 (1992); Robert F. Turner, State Sovereignty, 
International Law, and the Use of Force in Countering Low-Intensity Aggression in the Modern World, in 

Legal and Moral Constraints on Low-Intensity Conflict 43, 62-80 (Alberto R. 

Coll et al. eds., 1995) (Vol. 67, US Naval War College International Law Studies); Claude 
Humphrey Meredith Waldock, The Regulation of Force by Individual States in International Law, 81 

Recueil des Cours de L'Academie de Droit International 451, 496-99 (1952) 

(anticipatory self-defense permissible, as long as principles of necessity, proportionality observed) 
with, e.g., BROWNLIE, supra note 5, at 257-61, 275-78, 366-67; DlNSTEIN, supra note 5, at 
182-87, 190; LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 121-22 (1995); 

Philip C. Jessup, A Modern Law of Nations 166-67 (1948); D.P. O'Connell, The 
INFLUENCE OF LAW ON SEA POWER 83, 1 7 1 (1 979) ; 2 OPPENHEIM, supra note 5, § 52aa, at 1 56; 



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Ahmed M. Rifaat, International Aggression 126 (1974); Simma, supra note 9, at 

675-76; Tom Farer, Law and War, in 3 CYRIL E. BLACK & RICHARD A. FALK, THE FUTURE OF 
THE INTERNATIONAL LEGAL ORDER 30, 36-37 (1971); Yuri M. Kolosov, Limiting the Use of 
Force: Self-Defense, Terrorism, and Drug Trafficking, in LAW AND FORCE; Josef L. Kunz, Individual 
and Collective Self-Defense in Article 51 of the Charter of the United Nations, 41 AMERICAN JOURNAL 
OF INTERNATIONAL LAW 872, 878 (1947); Rainer Lagoni, Remarks, in Panel, supra; Robert W. 
Tucker, The Interpretation of War Under Present International Law, 4 INTERNATIONAL LAW 
QUARTERLY 11, 29-30 (1951); see also Robert W. Tucker, Reprisals and Self-Defense, 66 

American Journal of International Law 586 (1972) (States may respond only after 

being attacked. US policy is that States may respond in anticipatory self-defense, subject to 
necessity and proportionality principles, and admitting of no other alternative. ANNOTATED 
SUPPLEMENT, supra note 5, fflf 4.3.2-4.3.2. 1 . George K. Walker, Anticipatory Collective Self Defense 
in the Charter Era: What the Treaties Have Said, 365, 379, 381-86, 351-59, in THE LAW OF 
MILITARY OPERATIONS: LlBER AMICORUM PROFESSOR JACK GRUNAWALT (Michael N. 
Schmitt ed., 1998) (Vol. 72, US Naval War College International Law Studies) discusses drafting of 
Article 51, UN Charter. The right of self-defense also inheres to belligerents' warships while in 
neutral waters, or neutral warships in belligerents' waters as well as on the high seas, Helsinki 
Principle 5.1.1 & cmt., supra note 13, at 506. Some defense treaties are not published, 
RESTATEMENT (THIRD), supra note 18, § 312 r.n.5; see also 1 US Code. § 112a(b) (1994). UN 
Charter, art. 102 requires treaties to be published in United Nations Treaty Series if parties wish to 
invoke them before a UN organ; Covenant of the League of Nations, art. 18, required members to 
register all treaties with the League; they were not binding until registered. Article 18 was among 
US President Woodrow Wilson's Fourteen Points. GOODRICH ETAL., supra note 9, at 610-14; 
SlMMA, supra note 9, at 1103—16. National legislation may require publication of agreements or 
notifying the national legislature of all international agreements, e.g., 1 US Code § 112b (1994). 
Some commentators believe jus cogens, e.g., perhaps the right of self-defense, may trump treaty law: 
See Carin Kahghan, fus Cogens and the Inherent Right to Self-Defense, 3 INTERNATIONAL LAW 

Students Association Journal of International and Comparative Law 767, 827 
(1997). 

21. UN Charter, arts. 25, 48, 103 (Council decisions). See also Lalive, supra note 5, at 78-81; 

Sydney D. Bailey & Sam Daws, The Procedure of the UN Security Council ch. 1.5 
(3d ed. 1998); Jorge Casteneda, Legal Effects of United Nations Resolutions ch. 3 

(Alba Amoia trans. 1969); GOODRICH ET AL., supra note 9, at 126, 144, 290-314; SlMMA, supra 
note 9, at 284, 407-18, 605-36, 652; CASTREN, supra note 5, at 434. Nonbinding Assembly or 
Council resolutions can add strength to a preexisting norm to evidence its existence and vitality or 
can contribute to development of a new norm. BROWNLIE, supra note 17, at 14-15, 694; 1 
OPPENHEIM, supra note 17, § 16, at 47-49; RESTATEMENT (THIRD), supra note 18, § 103(2)(d), 
cmt. c, r.n.2. 

22. Helsinki Principles 1.4, 3.1, 4, supra note 13, at 500, 503, 505; ANNOTATED 
SUPPLEMENT, supra note 5, fflf 8.1-8.1.3; San Remo Manual, supra note 12, ffl| 34-42, 44, 46. 
Protocol for Prohibition of Use in War of Asphyxiating, Poisonous or Other Gases, & of 
Bacteriological Methods of Warfare, with US no-first-use reservation, June 17, 1925 & Apr. 10, 
1975, 26 U.S.T. 571, 94 L.N.T.S. 65 (gas, bacteriological warfare). 

23. See supra note 20 and accompanying text. 

24. One example of Charter law modifications is the UN Charter, art. 103, treaty trumping 
provision. 

25. Helsinki Principle 1.2 & cmt., supra note 13, at 499; Dietrich Schindler, Commentary, in 

Law of Naval Warfare, supra note 14, at 211. 

26. PJESTATEMENT (THIRD), supra note 18, § 103. 

27. Cf Helsinki Principle 1.2 & cmt., supra note 13, at 499. 



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28. UN Charter, art. 2(5); Quincy Wright, The Outlawry of War and the Law of War, 47 
American Journal of International Law 365, 371-72 (1953). Permanently neutral 

countries have supported UN action. See, e.g., GABRIEL, supra note 5, at 132—33 (Swedish, Swiss 
economic aid and/or support during Korean War); ROSS, supra note 5, chs. 7-9 (Swedish, Swiss 
actions against Rhodesia). 

29. Helsinki Principles 1.4, 3.1, 4, supra note 13, at 500, 503, 505; ANNOTATED 
SUPPLEMENT, supra note 5, fflf 8.1-8. 1 .3; SAN REMO MANUAL, supra note 12, fflf 34-42, 44, 46. 

30. International law prohibits belligerents' hostile acts in neutral territory, including a 
neutral's land and internal waters, territorial sea, and airspace, or using neutral territory as a 
sanctuary. Convention Respecting Rights & Duties of Neutral Powers & Persons in Case of War 
on Land, Oct. 18, 1907, art. 1, 36 Stat. 2310, 2322 (Hague V); Convention Concerning Rights & 
Duties of Neutral Powers in Naval War, Oct. 18, 1907, art. 2, 36 Stat. 2415, 2427 (Hague XIII); 
Convention on Maritime Neutrality, Feb. 28, 1928, art. 3, 47 Stat. 1989, 1991, 135L.N.T.S. 187, 
196 (Maritime Neutrality Convention). The United States is party to it and to the Convention 
Regarding Rights of Neutrals at Sea, July 22, 1854, 10 id. 1105, in force among Nicaragua, the 
former USSR and the United States. TIF, supra note 15, at 445-46, 470-71. See also General 
Declaration of Neutrality of the American Republics, Oct. 3, 1939, ^f 3(a), 3 BEVANS 604, 605 
(General Declaration), among 21 Western Hemisphere countries including the United States; 
Declaration for the Purpose of Establishing Similar Rules of Neutrality, May 27, 1938, arts. 8-10, 
11, 188 L.N.T.S. 294, 301, 308-09, 315, 321, 329 (Nordic Neutrality Rules), among Denmark, 
Finland, Iceland, Norway and Sweden. Commission ofjurists, Hague Rules of Air Warfare, Dec. 
1922 - Feb. 1923 (Hague Air Rules) art. 40, reprinted in DIETRICH SCHINDLER &JIRI TOMAN, 
THE LAWS OF ARMED CONFLICT 207, 214 (3d ed. 1988). See also Helsinki Principle 1.4, supra 
note 13, at 500; 3 HYDE, supra note 5, § 887; 2 HOWARD S. LEVIE, THE CODE OF 
International Armed Conflict 785 (1985); Annotated Supplement, supra note 5, 1 
7.3; SAN P^EMO MANUAL, supra note 12, fflf 17-18; US Department of the Air Force, 
International Law — The Conduct of Armed Conflict and Air Operations ^| 2— 6c (1976) (AFP 
110-31). Hague V, supra, reflects custom as to its rules on neutral territory; ANNOTATED 
SUPPLEMENT, supra note 5, ^flj 7.3 n.22, 7.3.2 n.32. Where the Maritime Neutrality Convention, 
supra, parallels their terms, it too can be assumed to restate custom. Hague Air Rules, supra, are 
generally regarded as declaring customary law. 

31. UN Charter, arts. 2(4), 103; see also note 9, Pact of Paris, supra note 11; United States 
Department of State, Treaties in Force 439 (1998) (TIF); GOODRICH ET AL., supra note 9, at 
614—17; SlMMA, supra note 9, at 1116—25. Commentators and countries continue debating 
whether anticipatory self-defense, i.e., a response with force that is necessary, proportional and 
admitting of no other alternative, is permitted in the UN Charter era. Compare, e.g., Nicaragua 
Case, supra note 20, at 14, 347 (Schwebel, J., dissenting); STANIMAR A. ALEXANDROV, 
Self-Defense Against the Use of Force in International Law 296 (1996); Bowett, 

supra note 5, at 187-93; 1 OPPENHEIM, supra note 20, § 127; KELSEN, COLLECTIVE SECURITY, 
supra note 5, at 27; McCORMACK, supra note 20, at 122-24, 238-39, 253-84, 302; MCDOUGAL 
& FELICIANO, supra note 5, at 232-41; SCHACHTER, supra note 18, at 152-55; SHARP, supra note 
4, at 33-48 (real debate is the scope of the anticipatory self-defense right; responses must be 
proportional); STONE, supra note 20, at 3; THOMAS & THOMAS, supra note 20, at 127; Bunn, supra 
note 20, at 69-70; Greenwood, Remarks, in Panel, supra note 20, at 158, 160-61; Linnan. supra 
note 20, at 57, 65-84, 122; Lowe, supra note 14, at 127-30; McHugh, supra note 20. at 61; 
Mullerson & Scheffer, supra note 20, at 93, 109-14; Murphy, supra note 20, at 241 ; Reisman, supra 
note 20, at 25, 45; Robertson, supra note 20, at 89, 101; Turner, supra note 20. at 43. 62-80; 
Waldock, supra note 20, at 451, 496-99 (anticipatory self-defense permissible, as long as principles 
of necessity, proportionality observed) with, e.g., BROWNLIE, supra note 5. at 257-61, 275-78, 
366-67; DlNSTEIN, supra note 5, at 182-87, 190; HENKIN, supra note 20, at 121-22; JESSUP. supra 



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George K. Walker 



note 20, at 166-67; O'CONNELL, supra note 20, at 83, 171; 2 OPPENHEIM, supra note 5, 52aa, at 
156; RlFAAT, supra note 20, at 126; SlMMA, supra note 9, at 675—76; Farer, swpra note 20, at 30, 
36—37; Kolosov, supra note 20, at 232, 234; Kunz, supra note 20, at 872, 878; Lagoni, supra note 20, 
at 161, 162; Tucker, The Interpretation of War Under Present International Law, supra note 20, at 11, 
29—30; see also Tucker, Reprisals and Self-Defense, supra note 20, at 586 (States may respond only 
after being attacked). The former USSR generally subscribed to the restrictive view. Kolosov, 
supra note 20, at 234; Mullerson & Scheffer, supra note 20, at 107. US policy is that States may 
respond in anticipatory self-defense, subject to necessity and proportionality principles, and 
admitting of no other alternative. ANNOTATED SUPPLEMENT, supra note 5, ffl[ 4.3.2-4.3.2.1. 
Nicaragua Case, supra note 20, at 103, declined to address the issue. 

32. UN Charter, arts. 51, 103; see also supra notes 20, 31. A neutral member of a collective 
self-defense alliance, permitted by UN Charter, art. 51, may assist an alliance member that is a 
target of aggression by joining the self-defense response. If that occurs, whatever neutrality the 
assisting State might have claimed is lost, and it becomes a cobelligerent against the aggressor. On 
the other hand, it is possible for the neutral member to declare neutrality and confine its responses 
to retorsions and nonforce reprisals. If so, this may be a violation of the alliance treaty, but that is a 
matter between the neutral and the target of aggression. If a belligerent attacks enemy forces taking 
refuge on neutral territory, or these forces are there for other purposes, 2 OPPENHEIM, supra note 
5, § 320, at 685, says this is not hostilities against a neutral, "but are mere violations of neutrality; 
and they must be repulsed, or reparation must be made for them, . . . ," citing id. § 362. Besides a 
violation of neutrality law, it is submitted that an attacking belligerent, unless attacking under a 
theory of necessity, has committed a violation of UN Charter, art. 2(4), rendering it susceptible to 
self-defense or other responses by the invaded neutral; cf. 1 OPPENHEIM, supra note 20, § 326. 

33. In naval warfare, for example, if a neutral cannot or will not enforce its duty to require 
belligerent forces to cease and desist from the conduct of hostilities while in that neutral's waters, an 
aggrieved belligerent may act against those belligerent forces present in neutral waters. Helsinki 
Principle 2.1, supra note 13, at 501; ANNOTATED SUPPLEMENT, supra note 5, f 7.3; 2 
O'CONNELL, supra note 5, at 1 118-19 (Dresden, Altmark incidents); 2 OPPENHEIM, supra note 5, 
§§ 325-25a (same). 

34. UN Charter, arts. 51, 103; see also supra notes 20, 31, 32 and accompanying text. 

35. Under Hague V, Art. 3, and Hague XIII, Art. 5, the latter applying to naval warfare, 
belligerents may not "(a) Erect on the territory of a neutral Power a wireless telegraphy station or 
other apparatus for . . . communicating with belligerent forces on land or sea; [or] (b) Use any 
installation of this kind established by them before the war on the territory of a neutral Power for 
purely military purposes, and which has not been opened for the service of public messages." 
Hague V, supra note 30; Hague XIII, supra note 30. Under Hague V, Arts. 8—9, "A neutral Power is 
not called upon to forbid or restrict the use on behalf of belligerents of telegraph or telephone 
cables or of wireless telegraphy apparatus belonging to it or to companies of private individuals. . . . 
Every measure of restriction or prohibition . . . must be impartially applied ... to both belligerents. 
A neutral Power must see to the same obligation being observed by companies or . . . individuals 
owning telegraph or telephone cables or wireless telegraphy apparatus." The 1923 Hague Radio 
Rules echo these principles, adding that belligerent mobile radio stations must abstain from using 
their apparatus. Commission ofjurists to Consider & Report Upon Revision of Rules of Warfare, 
Rules for the Control of Radio in Time of War, Feb. 19, 1923, arts. 2-4 (Hague Radio Rules), 
reprinted in LAW OF NAVAL WARFARE, supra note 14, at 367, 368. 

36. See supra note 33 and accompanying text. 

37. A neutral cannot, however, allow belligerents to establish intelligence offices on its 
territory. 2 OPPENHEIM, supra note 5, § 356, at 748-51; see also 1 1 WHITEMAN, supra note 5, at 
220. 

38. See supra note 35. 



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39. Hague V, supra note 30, art. 19, 36 Stat, at 2326; compare Convention with Respect to 
Laws & Customs of War on Land, July 29, 1899, Regulations, art. 54, 32 id. 1803, 1823; see also 2 
LEVIE, supra note 30, at 832. 

40. 2 OPPENHEIM, supra note 5, § 355, at 747. 

41. Hague V, supra note 30, arts. 13-14, 36 Stat, at 2324-25; ANNOTATED SUPPLEMENT, 
supra note 5, ^f 7.3.1. 

42. This is by analogy from the rule that vehicles transporting sick and wounded carry no 
combatants or war materials and rules for belligerent radio stations on neutral territory. See supra 
notes 35—36 and 39—41 and accompanying text. 

43. See supra note 41 and accompanying text. 

44. See UN Charter, art. 103. United Nations Convention on the Law of the Sea, Dec. 10, 
1982, art. 221, 1833 U.N.T.S. 3, 489 (LOS Convention); Convention Relating to Intervention 
on the High Seas in Cases of Oil Pollution Casualties, Nov. 29, 1969, art. 1(1), 26 U.S.T. 765, 767, 
970 U.N.T.S. 211, 212 (Intervention Convention); see also 4 UNITED NATIONS CONVENTION 
ON THE LAW OF THE SEA: A COMMENTARY fflf 221 . 1-221 .9(h) (Myron H. Nordquist et al. eds., 
1991); 2 O'CONNELL, supra note 5, at 1006-8. The 1958 Law of the Sea Conventions and the 
LOS Convention "other rules" clauses, repeated in the navigational articles, have almost 
universally been said to mean the LOS is subject to the LOAC in appropriate situations. Compare, 
e.g., LOS Convention preamble (matters not regulated by Convention to be governed by rules, 
principles of international law) , arts. 2(3) (territorial sea), 19(1), 21(1), 31 (innocent passage), 34(2) 
(straits transit passage), 58(1), 58(3) (EEZs), 78(2) (continental shelf; coastal State cannot infringe or 
interfere with "navigation and other rights and freedoms of other States as provided in this 
Convention"), 87(1) (high seas), 138 (the Area), 303(4) (archaeological, historical objects found at 
sea; "other international agreements and rules of international law regarding the protection of 
objects of an archaeological and historical nature"), 1833 U.N.T.S. at 398, 400, 404-05, 408, 410, 
419, 431-32, 446, 517, with, e.g., Convention on the High Seas, Apr. 29, 1958, preamble, art. 2, 13 
U.S.T. 2312, 2314, 450 U.N.T.S. 11, 82 (High Seas Convention), (treaty restates customary law) ; 
Convention on the Territorial Sea & Contiguous Zone, Apr. 29, 1958, arts. 1(2), 14(4), 17, 22(2), 
15 id. 1606, 1608, 1610, 1611, 1612, 516 U.N.T.S. 205, 206-08, 214, 216, 220 (Territorial Sea 
Convention). Although the other 1958 law of the sea conventions do not have other rules clauses, 
they say they do not affect the status of waters above that are part of the high seas, for the 
continental shelf; or other high seas rights, for high seas fisheries. Convention on the Continental 
Shelf, Apr. 29, 1958, arts. 1, 3, id. 471, 473, 499 U.N.T.S. 311, 312, 314 (Continental Shelf 
Convention); Convention on Fishing & Conservation of Living Resources of the High Seas, Apr. 
29, 1958, arts. 1-8, 13, 17 id. 138, 140-43, 559 U.N.T.S. 285, 286-92, 296 (Fishery Convention); 
Territorial Sea Convention, supra, art. 24(1), 15 id. at 1612, 516 U.N.T.S. at 220 (contiguous 
zone). Thus the High Seas Convention regime, including its Article 2 other rules provision, is 
incorporated by reference into these Conventions, which modify some High Seas Convention 
principles but not the Article 2 other rules clause. The LOS Convention, supra, art. 33, 1833 
U.N.T.S. at 409, governing the contiguous zone, refers to an ocean belt contiguous to the 
territorial sea, which is part of the high seas except declared EEZ, fishing or continental shelf areas, 
otherwise subject to the high seas regime. See also JESSUP, supra note 2; JESSUP & DEAK, supra note 

3; W. Alison Phillips & Arthur H. RtiEDe, Neutrality: The Napoleonic Period 
(1936); Edgar Turlington, Neutrality: Its History, Economics and Law (1936). 

45. The LOS conventions also promote a due regard principle for shared ocean uses; one user 
must observe due regard for other users' rights, e.g., a right to lay cables that might carry Internet 
messages. Compare LOS Convention, supra note 44, arts. 87, 112—15, 1833 U.N.T.S. at 433. 440 
with High Seas Convention, supra note 44, arts. 2, 26-29, 13 U.S.T. at 2314, 2319-20. 450 
U.N.T.S. at 82, 96-98; Convention for Protection of Submarine Cables. Mar. 14. 1884, 24 Stat. 
989; Declaration Respecting Interpretation of Articles II & IV, Dec. 1, 1886, 25 id. 1424; see also 



254 



George K, Walker 



COLOMBOS, supra note 5, §§ 399-400; 3 UNITED NATIONS CONVENTION ON THE LAW OF 
THE SEA 1982: A COMMENTARY ^ 87.9(k) (Myron H. Nordquist et al. eds., 1995); 
Annotated Supplement, supra note 5, | 2.4.3; 2 O'Connell, supra note 5, at 796-99, 
819-24; 1 OPPENHEIM, supra note 17, §§ 285, at 789; 310-11; RESTATEMENT (THIRD), supra 
note 18, § 521(3); Bernard H. Oxman, The Regime of Warships Under the United Nations Convention 
on the Law of the Sea, 24 VIRGINIA JOURNAL OF INTERNATIONAL LAW 837-88 (1984); Horace 
B. Robertson, Jr., The "New" Law of the Sea and the Law of Armed Conflict at Sea, 273—74, in 

Readings on International Law from the Naval War College Review 

1978-1994 (John N. Moore & Robert F. Turner eds., 1994) (Vol. 68, US Naval War College 
International Law Studies). Due regard clauses apply to other sea areas. See, e.g., LOS Convention, 
supra note 44, arts. 27(4) (territorial sea), 39(3) (a) (straits transit passage), 56(2), 58(3), 60(3) (EEZ), 
79(5) (cables, pipelines), 142(1), 148 (the Area), 234 (ice-covered areas), 1833 U.N.T.S. at 407-08, 
41 1-12, 418-20, 430, 448, 450, 493; Continental Shelf Convention, supra note 44, arts. 1, 3-5(1), 
15 U.S.T. at 473, 499 U.N.T.S. at 312, 314 ("reasonable measures for exploration . . . [and] 
exploitation" of continental shelf balanced against right to lay, maintain submarine cables, 
pipelines; continental shelf exploration, exploitation must not result in "unjustifiable interference 
with" navigation, high seas fishing, oceanographic research); Territorial Sea Convention, supra 
note 44, art. 19(4), 15 U.S.T. at 1611, 516 U.N.T.S. at 216-18 (due regard for navigation 
interests); see also RESTATEMENT (THIRD), supra note 18, §§ 511(b)— 511(d), 514-15. LOS 
Convention, supra note 44, art. 311(1), 1833 U.N.T.S. at 519, declares it supersedes the 
Continental Shelf, High Seas and Territorial Sea Conventions, supra note 44, among parties to the 
LOS Convention. Recent commentaries advocate a due regard standard for belligerents during 
war; e.g., they must pay due regard to neutrals' high seas, continental shelf and EEZ rights and 
duties besides observing other LOAC rules. Helsinki Principles 3.1, 4 & cmts., supra note 13, at 
503, 505; San Remo Manual, supra note 12, ^| 34-36; Robertson, supra at 303. Helsinki Principle 
1.4, cmt., supra note 13 at 500-01, recites a due regard standard in a context of requiring 
proportional attacks under the LOAC where neutral territory, waters or airspace might be 
involved. 

46. See supra note 44 and accompanying text. 

47. A country creating the state of impossibility of performance cannot invoke the principle. 
Vienna Convention, supra note 20, art. 61, 1155 U.N.T.S., at 346; BROWNLIE, supra note 17, at 
623; T.O. ELIAS, THE MODERN LAW OF TREATIES 177-87 (1974); RESTATEMENT (THIRD), 
supra note 18, §§ 102-03, 128-30; Helsinki Principle 1.3 & cmt., supra note 13, at 499; 
International Law Commission, Report on the Work of Its Eighteenth Session, Report of the 
Commission to the General Assembly , UN Doc. A/6309/Rev. 1, reprinted in 2 (1974) YEARBOOK OF 
the International Law Commission 225-26 (ILC Report); 1 Oppenheim, supra note 17, 

§ 650; RESTATEMENT (THIRD), supra note 18, § 336 cmt. c & r.n.3; George K. Walker, Integration 
and Disintegration in Europe: Reordering the Treaty Map of the Continent, 6 TRANSNATIONAL LAW 1 , 
65-66 (1993); but see LORD McNAIR, THE LAW OF TREATIES 685 (2d ed. 1961) (no separate 
impossibility doctrine). 

48. Fundamental change of circumstances may not be invoked to suspend or terminate 
humanitarian law treaty obligations, particularly their reprisal provisions, or by a party causing the 
problem. Vienna Convention, supra note 20, art. 62, 1155 U.N.T.S. at 347; see also 
Gabcikovo-Nagymaros Project (Hung. v. Slovakia), 1997 I.C.J. 7, 39 (art. 62 a customary norm); 
Fisheries Jurisdiction (U.K. v. Ice.), 1973 I.C.J. 3, 18 (same); BROWNLIE, supra note 17, at 623-26; 
Harvard Draft Convention on the Law of Treaties, art. 28, 29 AMERICAN JOURNAL OF 
INTERNATIONAL LAW SUPPLEMENT 657, 662-63 (1935); Helsinki Principle 1.3 & cmt., supra 
note 13, at 499; McNAIR, supra note 47, at 685-91; 1 OPPENHEIM, supra note 17, § 651; 
Restatement (Third), supra note 18, §§ 336, 339; Ian Sinclair, The Vienna 
CONVENTION ON THE LAW OF TREATIES 20 (2d ed. 1984); David Bederman, The 1871 London 



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Declaration, Rebus Sic Stantibus and a Primitivist View of the Law of Nations, 82 AMERICAN JOURNAL 
OF INTERNATIONAL LAW 1 (1988); Gyorgy Harsatzti, Treaties and the Fundamental Change of 
Circumstances, 146 RECUEIL DES COURS DE L'ACADEMIE De DROIT INTERNATIONAL 1, 21 
(1975); Walker, supra note 47, at 66-68; compare ARIE E. DAVID, THE STRATEGY OF TREATY 
TERMINATION ch. 1 (1975); Oliver J. Lissitzyn, Treaties and Changed Circumstances, 61 
AMERICAN JOURNAL OF INTERNATIONAL LAW 895 (1967) (criticizing Vienna Convention 
approach) with ELIAS, supra note 47, at 119-28 (traditional rebus sic stantibus approach no longer 
admissible today). 

49. Vienna Convention, supra note 20, art. 60, 1155 U.N.T.S. at 346; see also 
Gabcikovo-Nagymaros Project, supra note 48, at 39 (Article 60 a customary norm); Namibia, 1971 
I.C.J. 4, 47; BROWNLIE, supra note 17, at 622-23; ILC Report, supra note 47, at 253-255; 
MCNAIR, supra note 47, ch. 36; 1 OPPENHEIM, supra note 17, § 649; SINCLAIR, supra note 48, at 
20, 166, 188-90. 

50. Kahghan, supra note 20, at 767, 827. Belligerents can respond by non-force reprisals or 
retorsions. TUCKER, supra note 5, at 199 n. 5. Reprisal has been characterized as a kind of self-help 
or sanction. Most commentators say reprisals involving force against a State not engaged in armed 
conflict with the acting State are not lawful in the Charter era. However, other coercion that is 
unlawful, e.g., deliberate breach of a trade treaty to compel a State engaging in unlawful conduct to 
comply with international norms, is admissible. Anticipatory reprisal using force is forbidden. A 
State considering reprisal must first call upon an offending State to mend its ways. Compare 
Declaration on Principles of International Law Concerning Friendly Relations & Co-Operation 
Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, ^flj 1 , 3, UN 
GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028 (1970), reprinted in 9 I.L.M. 1292, 1294, 
1297 (1970); Gabcikovo-Nagymaros Project, supra note 48, at 54; Nicaragua Case, supra note 20, at 14, 
127; Air Service Agreement of 21 March 1946 (U.S. v. Fr.), 18 R.I.A.A. 417, 443; BOWETT, supra 
note 5, at 13; J.B. BRIERLY, The LAW OF NATIONS 401-02 (Humphrey Waldock ed., 6th ed. 
1963); BROWNLIE, supra note 5, at 281; GOODRICH ETAL., supra note 9, at 340-47; ROSALYN 

Higgins, The Development of International Law Through the Political 
Organs of the United Nations 217 (1963); Annotated Supplement, supra note 5, ^j 
6.2.3.1; 2 OPPENHEIM, supra note 5, §§ 43, 52a, at 152-53; SlMMA, supra note 9, at 105; STONE, 
supra note 5, at 286—87; Roberto Ago, Addendum to Eighth Report on State Responsibility, U.N. Doc. 
A/CN. 4/318 & Add. 104, (1979), 2(1) YEARBOOK OF THE INTERNATIONAL LAW 
COMMISSION 13, 39, 42 (1981); Roberto Barsotti, Armed Reprisals, in ANTHONY CASSESSE. 
The Current Legal Regulation of the Use of Force 79 (1986); D.W. Bowett, 

Reprisals Involving Recourse to Armed Force, 66 AMERICAN JOURNAL OF INTERNATIONAL LAW 20 
(1972); Rosalyn Higgins, Tl\e Attitude of Western States Toward Legal Aspects of the Use of Force, in 
CASSESSE, supra, at 435, 444; Tucker, Reprisals and Self-Defense, supra note 20, at 586-87; with 
DlNSTEIN, supra note 5, at 215-16 (reprisals using force admissible in Charter era); LAWRENCE T. 
GREENBERG ETAL., INFORMATION WARFARE AND INTERNATIONAL LAW 26-27 (1998). 
Retorsion, or retortion, is a target State's lawful but unfriendly response to another State's 
unfriendly practice or act whether illegal or not, to coerce the latter to discontinue that practice or 
act. Retorsionary responses must be proportional. BRIERLY, supra, at 399; WILLIAM EDWARD 

Hall, A Treatise on International Law § 120 (A. Pearce Higgins ed., 8th ed. 1924); 2 

HYDE, supra note 5, § 588; FRITS KALSHOVEN, BELLIGERENT REPRISALS 27 (1971); 7 
MOORE, DIGEST § 1090; 2 OPPENHEIM, supra note 5, § 135; RESTATEMENT (THIRD), supra 
note 18, § 905 & r.n.8; SlMMA, supra note 9, at 104; STONE, supra note 5, at 288-89; Waldock. 
supra note 20, at 451, 458. 

51. Vienna Convention, supra note 20, arts. 53, 64, 1155 U.N.T.S. at 344, 347. 

52. Vienna Convention, supra note 20, does not provide for the operation of war, or armed 
conflict, on international agreements. However, other authorities agree that war may suspend or 



256 



George K, Walker 



terminate treaties, depending on the nature of the treaty and the circumstances of the conflict. See, 
e.g., ILC Report, supra note 47, at 267; Institut de Droit International, The Effects of Armed Conflict 
on Treaties, Aug. 28, 1985, arts. 2, 3, 5, 11, 61(2) Annuaire 278, 280-82 (1986); Regulations 
Regarding the Effect of War on Treaties, 1912, arts. 1 , 4, 7-10, reprinted in 1 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 153-55 (1913); Clark v. Allen, 331 U.S. 503, 513 (1947); Karnuth v. United 
States, 79 U.S. 231, 240-42 (1929); Techtv. Hughes, 128 N.E. 185, 191 (N.Y.), cert, denied, 254 U.S. 
643 (1920); 2 OPPENHEIM, supra note 5, §§ 99(4)-99(5); George B. Davis, The Effects of War Upon 
International Conventions and Private Contracts, 1927 PROCEEDINGS OF THE AMERICAN SOCIETY 
OF INTERNATIONAL LAW 124-29; G.G. Fitzmaurice, The Judicial Clauses of the Peace Treaties, 73 

Recueil des Cours de L'Academie de Droit International 255, 307-17 (1948); 

Harvard Draft Convention on the Law of Treaties, art. 28, 29 AMERICAN JOURNAL OF 
INTERNATIONAL LAW SUPPLEMENT 657, 662-64 (1935); Cecil J.B. Hurst, The Effect of War on 
Treaties, 2 BRITISH YEARBOOK OF INTERNATIONAL LAW 37, 40 (1921); James J. Lenoir, The 
Effect of War on Bilateral Treaties, with Special Reference to Reciprocal Inheritance Treaty Provisions, 34 
GEOREGETOWN LAW JOURNAL 129, 173-77 (1946); Walker, supra note 47, at 68-71. 
Impossibility or fundamental change of circumstances claims may overlap war suspension or 
termination claims. Impossibility, fundamental change, etc., are the only bases for termination or 
suspension for treaty relations between belligerents and neutrals. Herbert W. Briggs, The Attorney 
General Invokes Rebus Sic Stantibus, 36 AMERICAN JOURNAL OF INTERNATIONAL LAW 89 
(1942); Oliver J. Lissitzyn, Treaties and Changed Circumstances, 61 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 911 (1967); Walker, supra note 47, at 68-69. 

53. See supra note 33 and accompanying text. 

54. See supra note 30 and accompanying text. 

55. See supra notes 30—33 and accompanying text. 

56. Hague V, Hague XIII, Maritime Neutrality Convention, supra note 30; Vienna 
Convention, supra note 20, preamble, art. 38, 1155 U.N.T.S. at 333, 341; BROWNLIE, supra note 
17, at 5; 1 OPPENHEIM, supra note 17, §§ 10 , at 28, 11, at 32-36; RESTATEMENT (THIRD), supra 
note 18, § 102(3) & cmt. f 

57. Hague V, supra note 30, art. 5, 36 Stat, at 2323; Hague XIII, supra note 30, art. 25, id. at 
2432; Maritime Neutrality Convention, supra note 30, arts. 4(a), 26, 47 id. at 1991, 1994, 135 
L.N.T.S. at 196, 208; General Declaration, supra note 30, 3(c), at 605; Hague Air Rules, supra note 
30, arts. 42, 47, at 214—15; AFP 110-31, supra note 30, f 2-6c (air operations principle; Hague Air 
Rules, supra, not cited); 3 HYDE, supra note 5, §§ 855, 856A, 888; 2 LEVIE, supra note 30, at 788; 
Annotated Supplement, supra note 5, 1 7.3; 2 Oppenheim, supra note 5, §§316, 323, 325; 
TUCKER, supra note 5, at 260—61; but see Helsinki Principle 2.2, supra note 13, at 502 (neutral 
"must" take measures to enforce warship transit, sojourn rules). 

58. This includes interning crew. If an enemy prize is brought to a neutral port under distress 
or similar conditions and does not leave when directed, its crew must be interned. Hague XIII, 
supra note 30, arts. 21, 22, 24, 36 Stat, at 2431-32; see also Maritime Neutrality Convention, supra 
note 30, art. 17, 47 Stat, at 1993, 135 L.N.T.S. at 204; Nordic Neutrality Rules, supra note 30, art. 
4(1), 188 L.N.T.S. at 299, 305, 311, 319, 325. Hague XIII, supra note 30, art. 23 provides for an 
exception to this rule, entry of prizes under other than distress conditions, but several nations, 
including the United States, reserved to art. 23. See 36 Stat, at 2432, 2438. Hague XIII, arts. 21-22 
are customary law; art. 23 is not because of US and UK reservations, now applying to more States 
through treaty succession principles. The S. S. Appam, 243 U.S. 124, 150-51 (1917); 3HYDE, supra 
note 5, §§ 862, 864; 2 OPPENHEIM, supra note 5, §§ 328a; 333, at 706; 345; Symposium, State 
Succession in the Former Soviet Union and in Eastern Europe, 33 VIRGINIA JOURNAL OF 
INTERNATIONAL LAW 253 (1993); Walker, supra note 47. Neutrals must allow belligerent 
warship entry for asylum, distress or other purposes if they comply with innocent passage rules. 
LOS Convention, supra note 44, arts. 18-19, 1833 U.N.T.S. at 404 (innocent passage in distress, 



257 



Neutrality and Information Warfare 



but subject to other rules of international law, i.e., LOAC); Territorial Sea Convention, supra note 
44, arts. 1(2), 14, 15 U.S.T. 1608, 1610, 516 U.N.T.S. 206, 214; Helsinki Principle 2.2, supra note 
13, at 502; ANNOTATED SUPPLEMENT, supra note 5, ^ 3.2.2.1; 2 OPPENHEIM, supra note 5, §§ 
343-46; SAN REMO MANUAL, supra note 12, ^f 21. 

59. Convention Respecting Laws & Customs of War on Land, Oct. 18, 1907, Regulations, 
Art. 54, 36 Stat. 2227, 2308. This is limited to land warfare when a belligerent occupies enemy 
territory and seizes or destroys landing ends of cables connecting that territory with a neutral State. 
COLOMBOS, supra note 5, § 569. 

60. COLOMBOS, supra note 5, § 576; United States Department of the Navy, Law of Naval 
Warfare: NWIP 10-2 ^ 520b (1955 through Change 6, 1974) (NWIP 10-2); compare Institute of 
International Law, The Laws of Naval War Governing the Relations Between Belligerents, art. 54 
(1913), reprinted in SCHINDLER & TOMAN, supra note 30, at 857, 867 (Oxford Naval Manual). 
Modern manuals do not analyze the issue thoroughly, probably because of disuse of cables. See SAN 

Remo Manual, supra note 12, | 37. Annotated Supplement, supra note 5, ^f 1.6, at 24 
discusses cables in an LOS context; see also supra note 45 and accompanying text. 

61. See supra note 38 and accompanying text. 

62. Neutral merchant ships acquire enemy character and may be treated as enemy merchant 
vessels if they operate directly under enemy control, orders, charter, employment or direction. 

Annotated Supplement, supra note 5, f 7.5.2; San I^emo Manual, supra note 12, fflj 112-17. 

See also Helsinki Principle 5.1.2(4), supra note 13, at 507; ANNOTATED SUPPLEMENT, supra note 5, ^ 
8.2.2.2; SAN REMO MANUAL, supra note 12, If 67. 

63. E.g., hospital ships, medical aircraft; see generally Helsinki Principles 5.1.2(5)-5.1.2(6), 
supra note 13, at 507; ANNOTATED SUPPLEMENT, supra note 5, f 8.2.3; SAN REMO MANUAL, 
supra note 12, ^J 47—52, 136—40, 146, 151—52, citing treaties, custom (hospital ships; small coastal 
rescue craft; vessels granted safe conduct; vessels carrying cultural property; liners carrying only 
passengers; ships on religious, non-military scientific or philanthropic missions; small coastal 
fishing boats, coastal traders; vessels that have surrendered; life rafts, life boats). Neutral aircraft 
carrying passengers, or serving as medical or cartel aircraft, are also protected. See ANNOTATED 

Supplement, supra note 5, J 8.2.3; San Remo Manual, supra note 12, fflf 140-45, 153-58. 

64. Cf. Horace B. Robertson, Jr., Modern Technology and the Law of Armed Conflict at Sea, in 
Robertson, supra note 5, 362, 370; New Technologies and Armed Conflicts at Sea, 14 SYRACUSE 
Journal of International Law and Commerce 678, 704 (1988). This may mean that 

trying to define IW methods or means that are per se unlawful will fail, particularly when 
technology is developing exponentially. 

65. For a discussion of high seas visit and search, see generally Helsinki Principles 5.2.1, 5.2.7, 
supra note 13, at 509, 511; ANNOTATED SUPPLEMENT, supra note 5, fflj 7.6-7.6.2; SAN REMO 
MANUAL, supra note 12, fflf 116, 118-24. 

66. See supra note 62 and accompanying text. 

67. E.g., requirements for placing passengers and crew in safety before destroying an enemy 
merchantman. Proces- Verbal Relating to Rules of Submarine Warfare Set Forth in Part IV of the 
Treaty of London of 22 April 1930, Nov. 6, 1936, 3 298, 173 L.N.T.S. 353; Treaty for Limitation 
& Reduction of Naval Armaments, Apr. 22, 1930, art. 22(2), 46 Stat. 2858, 2881, 112 L.N.T.S. 
65, 88. See also ANNOTATED SUPPLEMENT, supra Bevans note 5, ffl[ 8.2.2.2, 8.3, 8.4; SAN REMO 
MANUAL, supra note 12, ^ 151. 

68. Neutral merchantmen must observe blockades that are duly established and notified and 
are eflfective and impartial. Helsinki Principles 5.2.10, 5.3, supra note 13, at 513; ANNOTATED 
Supplement, supra note 5, fflf 7.7.1-7.7.5; San Remo Manual, supra note 12, ffl[ 93-104. 

69. Hague Convention (XI) Relative to Certain Restrictions with Regard to Exercise of the 
Right of Capture in Naval War, Oct. 18, 1907, arts. 1-2, 36 Stat. 2396, 2408 (Hague XI). See also 
supra note 63 and accompanying text. 



258 



George K. Walker 



70. Helsinki Principle 3.3, cmt., supra note 13, at 505; ANNOTATED SUPPLEMENT, supra 
note 5, fflf 7.8-7.8.1; SAN REMO MANUAL, supra note 12, 1 108 & cmt. 108.1. Helsinki Principle 
3.2, 5wpra at 504, declares: 

Neutral ships should be aware of the risk and peril of operating in areas where active naval 
hostilities take place. Belligerents engaged in naval hostilities must, however, take 
reasonable precautions including appropriate warnings, if circumstances permit, to avoid 
damage to neutral ships. 

This does not authorize converting a naval operations area into a free-fire zone and does not 
obliterate the customary rule that belligerents must warn away neutral shipping from operational 
areas. The Helsinki rule might come into play if there is a chance encounter of belligerent forces. 

71 . Myres S. McDougal & William T. Burke, The Public Order of the Oceans 
753-63 (1962); Annotated Supplement, supra note 5, f 2.4.3.1; Restatement (Third), 

supra note 18, § 521, cmt. b; John H. Pender, Jurisdictional Approaches to Maritime Environments: A 
Space Age Perspective, 15 JAG JOURNAL 155-58 (1960); US Delegation Paper, UN Conference on 
the Law of the Sea, Legality of Using the High Seas in Connection with Nuclear Weapons Tests in the 
Pacific Ocean, Doc. No. US/CLS/Pos/48 (2)-(3), Annex II (Feb. 20, 1958), reprinted in 4 
Marjorie M. Whiteman, Digest of International Law 546, 549 (1968). 

72. Helsinki Principle 3.3 & cmt., supra note 13, at 504; ANNOTATED SUPPLEMENT, supra 
note 5, % 7.9; SAN I^EMO MANUAL, supra note 12, ffl| 105-08; WALKER, supra note 1, 403-10; 
Vaughan Lowe, The Impact of the Law of the Sea on Naval Warfare, 14 SYRACUSE JOURNAL OF 
INTERNATIONAL LAW AND COMMERCE 657, 673 (1988); W.J. Fenrick, The Exclusion Zone in 
the Law of Naval Warfare, 1986 CANADIAN YEARBOOK OF INTERNATIONAL LAW 91, 124-25 
(1986). Helsinki Principle 3.2, supra note 13, at 504, might come into play if there is a chance 
encounter of belligerent forces and has no effect on exclusion zone declarations. See also supra note 
70. 

73. See supra notes 68, 70, and 72 and accompanying text. 

74. Nyon Arrangement, Sept. 14, 1937, fflj 1-4, 181 L.N.T.S. 135, 137-38, amended by 
Agreement Supplementary to Nyon Arrangement, Sept. 17, 1937, ^f 1-3, id. 149, 151 appears to 
be the first instance of announced high seas defense zones. The belligerents declared them in the 
1982 Falklands/Malvinas War; the United States announced them in the 1980-88 Tanker War. 
See O'CONNELL, supra note 20, at 80, 168, 172 (1979); WALKER, supra note 1, 398-400; L.F.E. 
Goldie, Commentary, in LAW OF NAVAL WARFARE, supra note 14, at 489, 493-95; Goldie, 
Maritime War Zones and Exclusion Zones, in Robertson, supra note 5, at 156, 192; O'Connell, 
International Law and Contemporary Naval Operations, 44 BRITISH YEARBOOK OF 
INTERNATIONAL LAW 54-56 (1970). 

75. See supra note 64 and accompanying text. 

76. E.g., Agreement on Prevention of Incidents on & Over the High Seas, May 27, 1972, 
USSR-US, 23 U.S.T. 1168, 852 U.N.T.S. 151 (INCSEA); Protocol, May 22, 1973, 24 id. 1063; 
see also Agreement on Prevention of Dangerous Military Activities, June 12, 1989, USSR-US, 
T.I.A.S. No. 1485, reprinted in 28 I.L.M. 879 (1989). Other countries had INCSEA treaties with 
the former USSR. Annotated Supplement, supra note 5, ^| 2.8 n.110. These may be subject to 
treaty succession principles. Symposium, supra note 58; Walker, supra note 47. 

77. E.g., Convention on International Regulations for Preventing Collisions at Sea, Oct. 20, 
1972, 28 U.S.T. 3459; International Convention for Safety of Life at Sea, Nov. 1 , 1974, 32 id. 47, 
in force for most States with many amendments. See generally United States Department of State, 
Treaties in Force 406-09 (1998) (TIF). 

78. The legal basis for an ADIZ is a nation's right to establish reasonable conditions for entry 
into its territory. AFP 110-31, supra note 30, % 2-lg; MYRES MCDOUGAL ET AL., LAW AND 

Public Order in Space 307-09 (1963); Annotated Supplement, supra note 5, ^ 2.5.2.3; 

259 



Neutrality and Information Warfare 



RESTATEMENT (THIRD), supra note 18, § 521, r.n.2; NWIP 10-2, supra note 60, If 422b; Note, 
Air Defense Identification Zones: Creeping Jurisdiction in the Airspace, 18 VIRGINIA JOURNAL OF 
INTERNATIONAL LAW 485 (1978). US ADIZs are published in 14 C.F.R. part 99 (1999). Cf 
Convention on International Civil Aviation (Chicago Convention), Dec. 7, 1944, arts. 3, 8, 11,61 
Stat. 1181-83, 15 U.N.T.S. 298, 300, 304, requiring non-military aircraft to submit to rules for 
entering another State's territory unless there has been a prior agreement. 

79. See supra note 45 and accompanying text. 

80. UN Charter, art. 103; see also supra note 15 and accompanying text. 

81. Vienna Convention, supra note 20, does not provide for the operation of war, or armed 
conflict, on international agreements. However, other authorities agree that war may suspend or 
terminate treaties, depending on the nature of the treaty and the circumstances of the conflict. See, 
e.g., ILC Report, supra note 49, at 267; Institut de Droit International, The Effects of Armed Conflict 
on Treaties, Aug. 28, 1985, arts. 2, 3, 5, 11, 61(2) Annuaire 278, 280-82 (1986); id., Regulations 
Regarding the Effect of War on Treaties, 1912, arts. 1, 4, 7-10, reprinted in 7 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 153-55 (1913); Clarkv. Allen, 331 U.S. 503, 513 (1947); Karnuth v. United 
States, 79 U.S. 231, 240-42 (1929); Techt v. Hughes, 128 N.E. 185, 191 (N.Y.), cert, denied, 254 
U.S. 643 (1920); 2 OPPENHEIM, supra note 5, §§ 99(4)-99(5); Davis, supra note 52, at 124-29; 
Fitzmaurice, supra note 52, at 255, 307—17; Harvard Draft Convention on the Law of Treaties, 
supra note 52, art. 35(b), at 662—64; Hurst, supra note 52, at 37, 40; Lenoir, supra note 52, at 129, 
173—77; Walker, supra note 47, at 68—71. Impossibility or fundamental change of circumstances 
claims may overlap war suspension or termination claims. Impossibility, fundamental change, etc. 
are the only bases for termination or suspension for treaty relations between belligerents and 
neutrals. Briggs, supra note 52, at 89; Lissitzyn, supra note 52, at 911; Walker, supra note 47, at 
68-69. 

82. Helsinki Principles 1.4, 3.1, 4, supra note 13, at 500, 503, 505; ANNOTATED 
SUPPLEMENT, supra note 5, fflf 8.1-8.1.3; SAN REMO MANUAL, supra note 12, fflf 34-42, 44, 46; 
see also supra note 45 and accompanying text. 

83. LOS Convention, supra note 44, arts. 18-19, 1833 U.N.T.S. at 404; Territorial Sea 
Convention, supra note 58, art. 14, 15 U.S.T. at 1610, 516 U.N.T.S. at 214; Convention on 
International Civil Aviation (Chicago Convention), Dec. 7, 1944, arts. 1, 3, 61 Stat. 1180, 1181, 
15 U.N.T.S. 295, 298; ANNOTATED SUPPLEMENT, supra note 5, ^ 2.3.2.1, at 2-9; 1 
O'CONNELL, supra note 5, at 1 18. Maritime Neutrality Convention, supra note 30, art. 14, 47 Stat, 
at 1993; General Declaration, supra note 30, ^flj 3(a), 3(f), at 605; Hague Air Rules, supra note 30, 
art. 40, at 214; AFP 1 10-31, supra note 30, f 2-6c; Nordic Neutrality Rules, supra note 30, art. 8, 
188 L.N.T.S. at 301, 309, 315, 321, 329 (air ambulances excepted); ANNOTATED SUPPLEMENT, 
supra note 5, ^f 7.3.7; 2 OPPENHEIM, supra note 5, § 341a; SAN REMO MANUAL, supra note 12, ^ 
18. During World War II neutrals prohibited belligerent military aircraft entry. 1 1 WHITEMAN, 
supra note 5, at 357—58. 

84. I.C.J. Statute, art. 38(1); RESTATEMENT (THIRD), supra note 18. §§ 102-03. 

85. Compare Hague Air Rules, supra note 30, art. 48, at 215, with Hague V, supra note 30, art. 
10, 36 Stat, at 2324 and Hague XIII, supra note 30, art. 26, id. at 2433 ("unfriendly act"). 

86. See supra note 50 and accompanying text. 

87. Today, most commentators say a State cannot invoke a reprisal involving use of force, 
except when a State is a belligerent and wishes to respond, after request for the offender to comply 
with the law, with a proportional reprisal against an enemy. See supra note 50 and accompanying 
text. 

88. See supra note 57 and accompanying text. 

89. If a belligerent orders an aircraft from a company or person in neutral territory, the neutral 
must prescribe a route for the aircraft away from the neighborhood of military operations ot the 
belligerent's opponent and "must exact whatever guarantees may be required to ensure that the 



260 



George K. Walker 



aircraft follows the route prescribed." General Declaration, supra note 30, ^j 3(f), at 605; Hague Air 
Rules, supra note 30. art. 46, at 214. 

90. Hague Air Rules, supra note 30, art. 47, at 215; see also Nordic Neutrality Rules, supra note 
30, art. 13, 188 L.N.T.S. at 303, 309, 315, 323, 329; Harvard Draft Convention on Rights & 
Duties of Neutral States in Naval and Aerial War, art. 6, 33 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 175, 245 (Supp. 1939) (Harvard Draft Neutrality Convention); 2 LEVIE, 
supra note 30, at 827. 

9 1 . Compare Hague Air Rules, supra note 30, art. 30, at 2 1 2 with AFP 1 1 0-3 1 , supra note 30, ^f 
2-6b (aircraft entering area of immediate air operations subject to "damages" from hostilities; 
belligerents cannot deny neutral aircraft access to international airspace even if bound for enemy 
territory); Annotated Supplement, supra note 5, ^J 7.8—7.8.1; San Remo Manual, supra note 12, ^J 
108 & cmt. 108.1 ; see also supra note 70 and accompanying text. Helsinki Principle 3.2, supra at 504, 
might come into play if there is a chance encounter of belligerent forces. 

92. ANNOTATED SUPPLEMENT, supra note 5, J 2.4.3.1; see also supra note 71 and 
accompanying text. 

93. Annotated Supplement, supra note 5, % 7.9; San P^emo Manual, supra note 12, fflj 

105—08; see also supra note 72 and accompanying text. 

94. See supra note 74 and accompanying text. 

95. See supra note 78 and accompanying text. 

96. See supra notes 83, 89 and accompanying text. 

97. UN Charter, art. 103; see also supra notes 9, 15, 25 and accompanying text. 

98. See supra note 81 and accompanying text. 

99. See supra notes 45, 82 and accompanying text. 

100. Convention on Registration of Objects Launched into Outer Space, Jan. 14, 1975, 28 id. 
695, 1023 U.N.T.S. 15 (Registration Convention); Convention on International Liability for 
Damages Caused by Space Objects, Mar. 29, 1972, 24 id. 2389, 961 U.N.T.S. 187 (Liability 
Convention); Liability Convention; Treaty on Principles Governing Activities in Exploration & 
Use of Outer Space, Including the Moon & Other Celestial Bodies, Jan. 27, 1967, art. 6-8, 18 
U.S.T. 2410, 2415-16, 610 U.N.T.S. 209 (Outer Space Treaty); Agreement on Rescue of 
Astronauts, Return of Astronauts, & Return of Objects Launched into Outer Space, Apr. 22, 
1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 (Rescue & Return Agreement). 

101. See supra notes 2-53 and accompanying text. 

102. 2 O'CONNELL, supra note 5, at 1 142. Some limited, or localized, wars may have been total 
war from the belligerents' perspectives, but on a world scale basis, they might be considered local or 
limited in nature. One recent example is the 1980—88 Iran-Iraq conflict, the maritime aspects of 
which are examined in WALKER, supra note 1, ch. 2. 

103. JESSUP, supra note 2 at 156 ("There is nothing new about revising neutrality; it has 
undergone an almost constant process of revision in detail.") See also supra notes 2—5 and 
accompanying text. 

104. See generally ACLUv. Reno, 929 F. Supp 824, 830-38 (E.D.Pa. 1996)., affd, 521 U.S. 844, 

849-53 (1997); g. burgess alison, the lawyer's guide to the internet (1995); 
Philip Baczewski et al., The Internet Unleashed (1994); Katie Hafner & 
Matthew Lyon, Where Wizards Stay Up Late: The Origins of the Internet 

(1996); George Johnson, From Two Small Nodes, a Mighty Web Has Grown, NEW YORK TIMES, 
Oct. 12, 1999, at Dl; for historical analyses of the development of computers and the Internet. As 
World War 11 ended, Vannevar Bush suggested the basic idea of a personal computer; he traced the 
history of calculators, discussed speech-controDed typewriters, and advocated document storage 
on super fine grain microfilm shuffled by mechanical fingers. Bush believed that new logic and new 
symbolism would be necessary. Although he missed the idea of electronic communication, much 
of what Bush wrote in this perspective, futuristic article has become reality, albeit in different 



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Neutrality and Information Warfare 



modalities. Vannevar Bush, As We May Think, 176 ATLANTIC MONTHLY 101 (July 1945); 
Johnson, supra. Mechanical computers were used aboard warships before World War II to supply 
fire control solutions to naval guns through electrical circuits. Although most firing corrections on 
these computers were made aboard ship by telephone communications among gunners and fire 
control personnel who operated visual or radar-assisted gun directors and ship's combat 
information centers (i.e., a room aboard ship where radar repeaters portrayed shell splashes), shore 
bombardment effects and recommendations for corrections sometimes came by radio 
communications between ships and shore spotters, e.g., Army or Marine Corps forward artillery 
observers on the ground or in aircraft. The ship's computer "stored" prior information that had 
been inserted and retained this information until it was changed by operators. Information might 
be relayed through internal ship communications, perhaps to other computers aboard ship, but 
there was no data transfer among external computers, i.e., those on other vessels. Antisubmarine 
warfare systems, shipboard torpedo attack systems, and submarine fire control systems for torpedo 
attack employed similar fire control solutions, using electronics-based systems (e.g., sonar, radar) 
and mechanical devices operated in similar fashion, but there was little, if any, information 
exchange between an attacking ship and other stations. These systems operate in similar fashion 
today, although electronics-based computers have replaced mechanical systems, and missiles have 
replaced gun projectiles in many cases. 

105. "When the legal community first considered the .... regime that governed state activities 
and military operations in Cyber Space, some U.S. government attorneys stated rather boldly that 
(applying) modern information systems technology to military purposes was so new that no law 
applied." SHARP, supra note 5, at 5. A policy behind this approach is national sovereignty. See UN 
Charter, art 2(1); S.S. Lotus (Fr. V. Turk), 1927 PC. I.J., Ser. A, No. 10, at 4,18. 

106. Cf. I.C.J. Statute, Art 38(1); RESTATEMENT (THIRD) supra note 18, at 102-03. 

107. E.g. Office of General Counsel, Department of Defense, An Assessment of International 
Legal Issues in Information Operations (Nov. 1999). The paper is appended to this volume as the 
Appendix. See also GREENBERG, supra note 50, at 17; SHARP, supra note 5, at 5. 

108. UN Charter, arts. 2(4), 25,48, 51, 103; see also supra notes 2-44 and accompanying test. 

109. See, e.g., International Convention on Civil & Political Right, Dec. 16, 1966, arts. 4, 
19(3)(b) (derogation clauses), 17 (forbidding interference with correspondence), 19 (freedom of 
expression), 999 U.N.T.S. 171, 174, 177, 178; European Convention for Protection of Human 
Rights & Fundamental Freedoms, Nov. 4, 1950, arts. 6(1), 8(2), 10(2) (derogation clauses), 8(1) 
(correspondence), 10 (right of free expression regardless of frontiers), 213 id. 221, 228, 230; 
American Convention on Human Rights, Nov. 22, 1969, art. 13(2)(b), 27 (derogation clauses), 13 
(freedom of expression regardless of frontiers) , 14 (right of reply), 9 I.L.M. 673, 679-80, 683 
(1970). Banjul (African) Charter on Human & Peoples' Rights, June 27, 1981, art. 9 (rights to 
receive information, disseminate opinions within the law), 21 id. 58, 60 (1982) has no derogation 
clause; it would be subject, however, to the usual law of treaties principles on impossibility of 
performance, etc. See also SUBATRA ROY CHOWDHURY, RULE OF LAW IN A STATE OF 
EMERGENCY 12-13, 22-29, 59, 121-25, 210-11(1989) (analyzing International Law Association 
Minimum Standards of Human Rights Norms in a State of Emergency (1984)); MYRES S. 
MCDOUGAL ET AL., HUMAN RIGHTS AND WORLD PUBLIC ORDER 813-15 (1980); Joan 
Fitzpatrick, Protection against Abuse of the "Concept of Emergency, " in HUMAN RIGHTS: AN 

Agenda for the Next Century 203 (American Society of International Law 
Studies in Transnational Policy., louis henkin &john lawrence hargrove eds. 
1994); HENKIN, International Human Rights as "Rights" 1 CARDOZO LAW REVIEW 446-47 (1979); 
Universal Declaration of Human Rights, Dec. 10, 1948, arts. 12, 19, 27 U.N.G.A. Res. 217 
(1948), reprinted in DIETRICH RAUSCHNING ET AL., KEY RESOLUTIONS OF THE UNITED 
NATIONS GENERAL ASSEMBLY 1946-1996, at 321-22 (1997). Nuclear Weapons, 1996 I.C.J. 226, 
at 239-40, observed that "the protection of the (Civil & Political Rights Covenant) does not cease 



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George K. Walker 



in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may 
be derogated from in a time of national emergency. Respect for the right to life is not such a 
provision. . . .[T]he right not arbitrarily to be deprived of one's life applies also during 
hostilities. . . .[W]hat is an arbitrary deprivation of life . . . then falls to be determined by the 
applicable lex specialis . . . the [LOAC] . . . designed to regulate the conduct of hostilities. Thus 
whether a particular loss of life, through use of a certain weapon in warfare, is to be considered an 
arbitrary deprivation of life contrary to . . . the Covenant, can only be decided by . . . the [LOAC] 
and not .... from the terms of the Covenant." To the extent that human rights treaty norms 
represent custom, law of treaties analysis does not apply. However, derogations from custom like 
the persistent objector rule do, and will apply to Declaration norms having status as custom. "The 
United States has long denied that any obligation rests upon it when a neutral to attempt to control 
expressions of opinion by private persons within its territory and adverse to the cause of any 
belligerent," although the US Government has appealed to its citizenry to refrain from partisanship 
during war. 3 HYDE, supra note 5, § 874. 

110. These might be applied through the analogy of the due regard principle, taken from the 
LOS and applied during armed conflict by analogy. See supra note 79 and accompanying text. 

111. See supra note 30 and accompanying text. 

112. See supra notes 57, 58 and accompanying text. 

113. See supra note 33 and accompanying text. 

114. Outer space also has this characteristic, but beyond the Charter and general principles 
applicable to any situation, there is little law from which analogies for neutrality law in the IW 
context might be drawn. See supra notes 96—100 and accompanying text. 

115. See supra notes 44-79 and accompanying text. 

116. See, e.g., supra notes 68, 70—72, 78, 89, 91—93 and accompanying text. 

117. Myres S. McDougal, The Hydrogen Bomb Tests and the International Law of the Sea, 49 

American Journal of International Law 356-58 (1955). 

118. See supra note 64 and accompanying text. The law for dropping projectiles from balloons 
comes to mind. See Declaration Prohibiting Discharge of Projectiles & Explosives from Balloons, 
Oct. 17, 1907, 36 Stat. 2439, still in force for 28 countries including the United States, and perhaps 
more if treaty succession principles are taken into account. See TIF, supra note 15, at 450; 
Symposium, supra note 58; Walker, supra note 47. 

119. 1.CJ. Statute, art. 38(1); RESTATEMENT (THIRD), supra note 20 §§ 102-03; see also supra 
notes 18-19 and accompanying text. 



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XIV 



Information Operations in the 

Space Law Arena: 
Science Fiction Becomes Reality 

Douglas S. Anderson and Christopher R. Dooley* 

The most likely way for the world to be destroyed, most experts agree, is by acci- 
dent. That's where we come in; we're computer professionals . We cause accidents. ? 



W; 



ar fighting has come a long way from the days of swords and shields. 

No longer must armed forces rely completely on "arms," or even 
"forces," to gain victory on the battlefield. Today, computers are becoming 
the weapon of choice for the military warrior. Forget the old standbys of the 
M-16, Abrams tank, Nimitz-class carrier, or F-16. As forces become more 
computer and technologically dependent, militaries of the future will have a 
completely different look. 2 In some respects, this should not surprise us. Tech- 
nological change has always transformed the means and methods of warfare, 
but the pace of transformation has increased dramatically in the past few 
decades. While laptops and cyber chips may never completely displace guns 
and bullets in the warfighter's arsenal, they certainly will become an increas- 
ingly critical part. 

Nowhere is this technological transformation more evident than in the areas 
of military space resources and information operations. Lasers, electronic pulses, 
pinpoint sensing equipment, and a vast array of other sophisticated space systems 



Information Operations in the Space Law Arena 



are becoming an ordinary part of our day-to-day military experience. As the lat- 
est microchip and computer network capabilities become an integral part of at- 
tacking and defending those space systems, the future will be fraught with 
dramatic new possibilities. Yesterday's science fiction is becoming today's 
reality. 

Background 

This new reality is already a significant threat to the US national security infra- 
structure. Consider the evidence. According to former Deputy Defense Secre- 
tary John Hamre, one particular Department of Defense (DoD) computer 
network is penetrated as often as 10-15 times a day by computer hackers. 3 With 
more than 2.1 million computers and 10,000 local area networks, DoD was the 
target of more than 250,000 detected intrusions in 1998. 4 That figure is even more 
astounding when you consider that the Defense Information Systems Agency 
(DISA) estimates that only one intrusion out of every 150 is even detected. 5 In 
February 1998, while the US was preparing to deploy forces to the Persian Gulf, 
a computer attack known as "Solar Sunrise" was initiated against computer sys- 
tems throughout the Department of Defense. 6 The potential implications of the 
attack were sobering: 

Someone, or some group of people . . . gained root access, systems administrator 
status, on over 20 important logistical computers throughout the Air Force and, 
subsequently, we learned throughout the Navy and Army. They could have 
therefore crashed the systems. They downloaded thousands of passwords and they 
installed sniffers and trap doors. And for days, critical days, as we were trying to get 
forces to the Gulf, we didn't know who was doing it. We assumed therefore it was 
Iraq. We found out it was two 14-year-olds from San Francisco. Was that good 
news or bad? If two 14-year-olds could do that, think about what a determined 
foe could do. 7 

"Eligible Receiver" was a cyber attack exercise in June 1997, which was 
launched by the Department of Defense against itself to see how well our sys- 
tems detected and responded to the attack. For days, the attack went undetected. 
This exercise demonstrated the ability of a potential enemy to disrupt computer 
operations of major military commands, create large-scale blackouts, and inter- 
rupt emergency phone service in Washington, DC. 8 These types of cyberspace 
intrusions are not limited to the domain of criminals or terrorist hackers. States 
have been, and will continue to be, engaged in the use of information 

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Douglas S. Anderson and Christopher R. Dooley 



operations. They recognize, as does the US, its value in protecting national secu- 
rity interests. 9 There have been reports that during the NATO-led Operation 
ALLIED FORCE campaign against Serbia, Serbs hacked into the NATO 
World Wide Web pages and flooded e-mail accounts in the US with pro-Serb 
messages. 10 The reported Serbian actions, and others like them, demonstrate 
that the threat of cyber attack is real. Both the White House and DoD are cer- 
tainly convinced. In response to the threat against DoD communications sys- 
tems and other government computer data, the Clinton Administration issued a 
White Paper in May 1998 setting forth policy and goals on critical infrastructure 
protection. 11 In addition, the DoD created the Joint Task Force - Computer 
Network Defense 12 (JTF-CND), which maintains a 24-hour operations center 
to provide warnings of cyber attacks on DoD systems. 13 

Couple the dangers of cyber attacks with our heavy reliance on space systems 
and the threat becomes all the more sobering. It is more than just an axiom that 
outer space is the proverbial high ground. 14 Access to, and control of, outer 
space are fundamental to our nation's economic and military security. 15 More- 
over, we can no longer take that access and control for granted. While the US 
dominates outer space activity today, it is estimated that within the next 10 to 20 
years more space-based systems will be available to friendly and unfriendly na- 
tions alike. 16 These systems will provide communications, weather, surveil- 
lance, and a host of other critical services that will have both a military and 
civilian use. Friends and foes will be able to use the same space systems. 17 
Therein lies one of the dangers. 

Modern military forces rely heavily on dual-use telecommunications media, 
including telephones, faxes, and e-mail that travel over civilian owned or oper- 
ated networks. In fact, 95 percent of all DoD telecommunications traffic flows 
over public networks. 18 Telecommunications are a particularly acute vulnera- 
bility because of this high degree of dependence by modern militaries. 19 This re- 
liance permeates every facet of society, thus allowing exploitation throughout 
the conflict spectrum at the tactical, operational, and strategic levels. 20 Because 
of their data transfer capacity and mobility, telecommunications are increasingly 
important as the critical media by which our national instruments of power are 
directed. 21 

The threats are real, the vulnerabilities potentially grave, and new computer 
technology is largely responsible. Information operations and outer space opera- 
tions are uniquely intertwined through their mutual reliance on, and vulnerabil- 
ity to, computer technology. Moreover, that technology is changing rapidly. 
From a military operation or infrastructure protection perspective, it is difficult 
to keep pace with such rapid developments. Equally daunting is the effort to 

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Information Operations in the Space Law Arena 



apply existing legal regimes to these new technologies. Both information opera- 
tions and space operations apply military force in a way that challenges tradi- 
tional international legal norms. Admittedly, such a topic raises far more issues 
than can be adequately addressed here. Therefore, this chapter is intended only 
as a basic primer to introduce the reader to the international law applicable to in- 
formation operations that affect military space systems. 

Scope and Definition of the Information Operations Concept 

It is readily apparent how wide-ranging the computer attack threat to our 
national security infrastructure can be. It can include activities such as of- 
fensive and defensive electronic jamming, information denial, manipulation 
of data, morphing of video transmissions, destruction of hardware, or a 
myriad of other techniques to render military weapons and systems ineffec- 
tive, inoperable, or unavailable at a critical time. In the legal context, infor- 
mation operations — including threats by individuals, organizations, or nations; 
actions motivated by goals ranging from monetary greed to terrorist revenge; 
and operations with military objectives — touch both international and domes- 
tic law. 

For our purposes, discussion of information operations is limited to actions 
by, or on behalf of, nation States. Moreover, domestic laws and regulations are 
not our focus, although there are certainly many regulations that apply. 22 In- 
stead, we examine those aspects of public international law relating to outer 
space that may have an impact on information operations. 

As a starting point, it is necessary to define terms, since "information opera- 
tions" is not a term of art with a universally agreed upon meaning. Indeed, 
the US military services, and the DoD itself, do not use consistent terminol- 
ogy. For example, in the glossary of Doctrine Document 2-5, the Air Force 
adopts the DoD definition of "information operations" found in DoD Direc- 
tive 3600.1: "actions taken to affect adversary information and information 
systems while defending one's own information and information systems/-' 
Yet the Air Force takes the unusual step of qualifying that definition with what 
it calls "a more useful working definition," namely, "[t]hose actions taken to 
gain, exploit, defend or attack information and information systems and in- 
clude both information-in-warfare and information warfare (emphasis added)." 24 
Even though the Air Force and DoD definitions emphasize different aspects of 
information operations, their concepts, as well as that of the other military ser- 
vices, include both offensive and defensive operations. While we use the term 
"information operations" in a very broad sense that includes attacking or 

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Douglas S. Anderson and Christopher R. Dooley 



defending information and information systems, for the purpose of this chapter 
we place particular emphasis on computers as the primary means of doing so. 

The Importance of IO to Military Operations 

The electron may well be the ultimate precision guided weapon, 25 for infor- 
mation is becoming a strategic resource that could prove as valuable and influen- 
tial in the post-industrial era as capital and labor were in the industrial age. 26 Use 
of the term "information operations" signifies a new way of thinking that recog- 
nizes the central importance of modern information systems as force enhancers, 
as vitally important targets, as a means of defense, and as cyberweapons that may 
be used to attack certain targets. 27 

While both netwar and cyberwar 28 revolve around information communications 
matters, at a deeper level they are forms of war about "knowledge" — about who 
knows what, when, where, and why, and about how secure a society or a military is 
regarding its knowledge of itself and its adversaries. 

Netwar refers to information-related conflict at a grand [strategic] level between 
nations or societies. It means trying to disrupt, damage or modify what a target 
population "knows" or thinks it knows about itself and the world around it. It may 
involve public diplomacy measures, propaganda and psychological campaigns, 
political and cultural subversion, deception of or interference with local media, 
and efforts to promote a dissident or opposition movement across computer 
networks. 29 

Daniel Kuehl, Professor of Military Strategy at the National Defense Univer- 
sity's School of Information Warfare and Strategy, notes that information war- 
fare is intended to "influence the enemy's will and ability to fight so that they 
stop fighting and you win." 30 

Information is aimed at affecting the enemy's cognitive and technical abilities to 
use information while protecting our own — to control and exploit the 
information environment. In some ways it is technologically independent in that 
operations can be conducted in any of the media of war, not just cyberspace, to 
attain that key objective of weakening the enemy's will, but in other ways the 
new medium of cyberspace offers a particularly rich environment through which 
we can reach those elusive targets, the enemy's will and capability, via the various 



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Information Operations in the Space Law Arena 



entry ways and connecting points in the information environment, whether they 
be hardware, software, or wetware [the human mind]. 31 

The objective of offensive warfare has always been to deny, destroy, disrupt, 
or deceive the enemy — either in its employment of forces or in retaining the 
support of its people. 32 Mao Tse-Tung believed that "to win victory we must try 
our best to seal the eyes and ears of the enemy, making him blind and deaf, and to 
create confusion in the minds of the enemy commanders." 33 Information opera- 
tions are particularly well suited to sealing the eyes and ears of the enemy. By dis- 
rupting or denying the flow of information between the enemy's military forces 
and its command and control elements, information operations can essentially 
render sightless any enemy commander. 34 

The Importance of Space Systems to Military Operations 

Space denial is an important tenet of our national defense strategy. 33 Inherent in 
that tenet is the recognition that control of outer space is essential for victory on 
today's battlefield. Certainly, space power has evolved over the last ten years 
from merely being a useful force multiplier to being no less than an "indispensable 
adjunct." 36 According to one author, "the contemporary reality is that the US 
armed forces could not prevail, even against a modestly competent foe, without the 
support of space systems." 37 Air Force Chief of StaffGeneral Michael E. Ryan gives 
an excellent example of the practical use of space assets in a deployed environment. 

When a U-2 reconnaissance aircraft goes on a mission, the planes can send raw 
surveillance data via satellite to intelligence specialists in the United States, who 
can analyze it and send it to Operation Allied Force's Combined Air Operations 
Center at Vicenza, Italy. The data can then be sent to a pilot flying a strike mission. 
All this can be done within minutes and reduces the number of airmen who have 
to deploy. 38 

During Operation ALLIED FORCE in the Balkans, a variety of space assets 
were used to support the NATO effort. According to Brigadier General Mike 
Drennan, Commander of the 21st Space Wing at Peterson Air Force Base, Colo- 
rado, navigation, strike indicators, search and rescue, communications, and 
weather images represented just some of the space systems support provided to 
commanders in the theater. 39 Additionally, both conventional air-launched 
cruise missiles and Tomahawk land-attack missiles launched from ships, as well 
as certain other precision guided weapons, owed their success to the Global 

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Douglas S. Anderson and Christopher R. Dooley 



Positioning System (GPS). 40 While GPS was designed by the Department of 
Defense as a dual-use system, its primary purpose has been to enhance the effec- 
tiveness of US and coalition military forces. 

Our national space policy expressly recognizes that US national security is de- 
pendent upon an ability to maintain access to, and use of, space. 41 At times, our 
national security interests may require denial of space to our adversaries. Infor- 
mation operations can play a key role in space control and denial. For instance, 
intrusions into an adversary's computer network and manipulation of key data 
can prevent a space launch, move an opponent's communications or remote 
sensing satellites out of orbit, or preclude satellite data from reaching command 
and control centers. 

World Wide Availability of Space Data Information 

One of the realities of space denial and space control objectives within our na- 
tional space policies and military doctrine is that the US does not, and will not, 
have exclusive access to space. A growing number of nations and organizations 
are obtaining space assets and systems of their own. 42 China has a rapidly devel- 
oping space program, as does Japan, India, Brazil, and, of course, Russia. 43 
France, India, and Israel have capabilities in high-resolution satellite surveillance 
technology, and this type of data is now commercially available for purchase by 
any nation. 44 The US Landsat and the French SPOT [Systeme Pour V Observation 
de la Terre] imaging systems have been around for years, but their technology 
continues to improve and become more widely available. 45 For instance, the 
French are currently marketing ten-meter resolution images, while some com- 
mercial satellites are now capable of one-meter resolutions. 46 More recently, the 
European Space Agency has developed Earth Resources Satellites (ERS) 1 and 
2, and marketed their synthetic aperture radar (SAR) images. Canadian Radarsat 
and the Helios reconnaissance satellite owned by France, Spain, and Italy may 
also have future commercial availability. 47 A further example of the public com- 
mercial availability of space system technology is the US' hugely successful GPS, 
which, until recently, enjoyed a near monopoly in space-based navigation tech- 
nology. Besides the availability of GPS, Europe is planning to launch its own sat- 
ellite navigation system called Galileo, projected to be operational in 2008. 

As non-US satellite navigation systems are developed and launched, 
additional legal issues and national security concerns arise. When a virtual US 
monopoly on particular space systems exists, such as there used to be with 
GPS, space denial or control is merely a matter of interrupting or encoding the 
information from our own systems so that other nations are unable to use it. 48 

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Information Operations in the Space Law Arena 



However, when other nations have similar space systems, or can purchase the 
information they produce, space denial or control may require more aggressive 
means of information operations. The commercial availability of potentially 
sensitive data creates obvious risks to national security. According to one analyst, 
"Islamic Jihad could get its hands on a one-meter resolution picture of a US Air 
Force General's headquarters in Turkey, convert the shot to a precise 
three-dimensional image, combine it with data from a GPS device, and transmit 
it to Baghdad, where a primitive cruise missile, purchased secretly from China 
could await its targeting coordinates." 49 

Information operations, used to assure US space control by denying its use by 
others, will certainly raise eyebrows and stir heated debate in the international 
community. Since any decision to employ a military option, especially one af- 
fecting outer space or space systems, must weigh political concerns and sensitivi- 
ties, a consideration of world opinion on the subject is useful. 

International Opinion on the Weaponization of Space 

Since the Soviet launch of Sputnik in 1957, many nations in the world com- 
munity have been ardently concerned about preventing the placement of weap- 
ons in outer space, particularly with respect to new weapons technology. As a 
result, any potential use of offensive information operations in, or affecting, 
outer space will likely aggravate international concerns. 

The debate has been polarizing, frequently pitting practical national secu- 
rity objectives against the desire to maintain at least one environmental realm 
free from military conflict. Early UN General Assembly resolutions generally 
sought to provide that outer space would be used exclusively for "peaceful 
purposes," but the term was never defined. 50 While nearly all voices claimed 
to be in favor of peaceful purposes, they were not so harmonious on the degree 
of military activity that concept included. The reality, of course, is that outer 
space has been a domain of the military since 1957 and has been of significant 
importance to the military to the present day. Today, some advocates of the 
non-weaponization of space seek to impede further military development of 
space with the ultimate hope of curtailing an arms race in outer space. While 
opponents of this view are not against "peaceful purposes" per se, they stress 
the need to be prepared for war as the best way to protect national interests."' 1 
In general, the two views are irreconcilable, although there is room for agree- 
ment on specific issues. 

The United Nations, which includes members on both sides of the debate, 
has taken an active role in international space law from the very inception of the 

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Douglas S. Anderson and Christopher R. Dooley 



space age. It has done so primarily through the work of the Committee on the 
Peaceful Uses of Outer Space (COPUOS). 

Committee on the Peaceful Uses of Outer Space 

In 1959, the United Nations established COPUOS 52 to enhance interna- 
tional cooperation in the peaceful uses of outer space. Since its creation, it has 
been the primary forum for the development of international space law. In fact, 
COPUOS was the architect for each of the existing five space law treaties. Of 
those, four have been ratified by most space-faring nations; together, they com- 
prise the core body of international space law. 53 

From its inception, COPUOS has promoted the use and maintenance of 
outer space for peaceful purposes. Early work resulted in the adoption of Gen- 
eral Assembly Resolution 1721 on December 20, 1961, which stated that "the 
common interest of mankind is furthered by the peaceful uses of outer space." 54 
General Assembly Resolutions 1884 and 1962, adopted two years later, contin- 
ued that theme. 55 Today, the Committee continues to encourage research and 
distribution of information on outer space matters, sponsor various programs and 
conferences, and study the legal issues arising out of space exploration and activity. 56 

As its name implies and its work confirms, COPUOS starts from the premise 
that outer space should be maintained for "peaceful uses." While this is a term 
that everyone has adopted, as noted earlier, there is strong disagreement about its 
meaning. Past practice has demonstrated that most COPUOS members believe 
military activity in outer space, as potentially contrary to the goals of interna- 
tional peace and security, must be closely scrutinized. In fact, at its fifty-first ses- 
sion, the UN General Assembly passed Resolution 51/44, "Prevention of an 
arms race in outer space." Included in that resolution was the statement that the 
General Assembly recognizes "that prevention of an arms race in outer space 
would avert a grave danger for international peace and security." 57 Other Gen- 
eral Assembly resolutions contain similar language. 58 

The large number of early space treaties and General Assembly resolutions 
would ordinarily reflect a committee that works well together. However, that 
has not been the case with COPUOS. Its early success in obtaining the first four 
treaties was due largely to the fact that compromises on space issues were easier 
to obtain before the full potential of space exploration had been fully under- 
stood. 59 However, fundamental rifts soon developed within COPUOS, and 
have continued, between space and non-space powers. 60 More recently, the 
United States has found itself on the minority side of several General Assembly 
resolutions intended to de-militarize outer space. 

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Information Operations in the Space Law Arena 



From the perspective of the UN Charter, these resolutions are merely 
non-binding recommendations. 61 However, some commentators have asserted 
that the "peaceful use" of outer space concept reflects customary international 
law, 62 and, to the extent it is referenced, therefore believe the General Assembly 
resolutions contain legally binding principles. 63 This argument is not particu- 
larly helpful since it does not address the meaning of the peaceful use concept. A 
more practical concern about these resolutions is whether the underlying view- 
point will ultimately lead to the development of another space law treaty which 
significantly limits military activity, including information operations, in or 
transiting outer space. 

Conference on Disarmament 

Closely related to COPUOS is the Conference on Disarmament (CD). Also a 
creation of the United Nations, it was established in 1979 as the single multilat- 
eral disarmament negotiating forum of the UN. The CD has grown from its 
original membership of 40 nations to 66, including the United States. 64 As with 
COPUOS, disagreements between CD members exist. These differences were 
clearly evident in 1985 when an Ad Hoc Committee, formed to find a means to 
curtail the arms race in space, held 20 meetings over a three-month period with- 
out reaching agreement on any of their objectives. 65 The primary catalyst in 
forming the Ad Hoc Committee was the US "Strategic Defense Initiative" pro- 
gram. 66 In debating a proposal for an arms control treaty for space, the United 
States argued that there was no need for such a treaty since existing treaties were 
sufficient. In contrast, the former socialist block nations indicated a willingness 
to conclude an agreement that would not only prohibit space attack weapons 
then under development, but would also require the destruction of existing 
weapons. While the Soviet Union accused the United States of "disrupting" and 
"hampering" the ratification of several important arms control agreements, 
China's tone was at least as emphatic. China made it clear that "the 'Star Wars' 
plan must not be carried out" and that "China is firmly opposed to an arms race 
in outer space . . . and proposes to achieve first 'the de-weaponization of outer 
space' at the present stage." 67 The nonaligned and neutral States consistently 
supported the idea that space weapons must be prevented in outer space at all 
costs. 68 

A more recent example of this split of opinion is found in General Assembly 
Resolution A/52/37, passed in 1997. That resolution called on the CD to 
re-examine the idea of establishing another Ad Hoc Committee to address the 
issue of militarization of space. This issue had re-captured the interest of the CD 

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Douglas S. Anderson and Christopher R. Dooley 



in light of recent developments in lasers and perceptions that the US was seeking 
to weaken the Anti-Ballistic Missile (ABM) Treaty. 69 Despite the efforts and 
objections of the US, the resolution was supported by 128 nations, including 
China, Russia, Canada, Japan, Australia, and New Zealand. The US, Great Brit- 
ain, and France were among the 39 abstentions. 70 Even more recently, another 
General Assembly resolution called for the CD to reestablish the prior Ad Hoc 
Committee on the Prevention of an Arms Race in Outer Space. Adopted on De- 
cember 4, 1998, by an overwhelming vote of 165 to 0, the US was one of four ab- 
stentions. 71 

China has been particularly active in the CD in its efforts to keep outer space 
weapon-free. In addition to co-sponsoring several UN General Assembly reso- 
lutions, it has also sought to obtain a legally binding international agreement to 
ensure outer space remains free of all weapons. In fact, China published a White 
Paper in July 1998 to outline its views on the weaponization of outer space. 72 
According to this paper, "China stands for the complete prohibition and thor- 
ough destruction of weapons deployed in outer space." 73 Additionally, it seeks a 
"ban on the use of force or conduct of hostilities in, from, or to outer space." 
China also wants to preclude all countries from experimenting with any space 
weapons systems that would provide strategic advantages on the ground. 74 
While its latest White Paper does not refer to information operations, the principles 
outlined therein seem to imply that China would oppose the use of information op- 
erations that could be seen as a "use of force," the "conduct of hostilities," or as "a 
weapon of any kind" in outer space. Despite this strong language, it is not surprising 
to read China's most recent statements, which express an intention not only to use 
information operations for military purposes, but to extend their use into space. 75 

During its 1998 session, the CD included in its agenda the frequently revisited 
topic of the "prevention of an arms race in outer space." 76 During that session, 
Canada proposed that the CD create an Ad Hoc Committee, referred to earlier, 
with the mandate to negotiate a convention for the non-weaponization of outer 
space. 77 The Canadian proposal makes two important admissions. First, it rec- 
ognizes that currently there is no multilateral international agreement that pro- 
hibits the deployment of weapons in outer space other than weapons of mass 
destruction. This recognition is consistent with the longstanding US position. 
Even more important, however, is the statement that "[w]e acknowledge that 
there is currently no arms race in outer space. We accept the current military uses 
of outer space for surveillance, intelligence-gathering and communications." 78 
Despite these two major concessions, it is nonetheless clear that much of the 
world disagrees with current US national and DoD space policy to the extent 
that it does not expressly denounce the weaponization of outer space. 



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Information Operations in the Space Law Arena 



US and DoD Space Policies 

The Clinton Administration announced the latest version of the National 
Space Policy on September 19, 1996. 79 The National Security Space Guidelines 
include the principle that the US will conduct its space activities in a way that as- 
sures hostile forces cannot deny our use of space and preserves our ability to con- 
duct both military and intelligence space-related activities. This makes some in 
the international community uneasy. 80 The National Space Policy also makes 
clear what has been obvious for quite some time — that access to and use of space 
"is central for preserving peace and protecting US national security." 81 

In terms of information operations, nothing in our current policy prohibits or 
even limits use of such technology to support our space security guidelines. In 
fact, it obligates the DoD to "protect critical space-related technologies and mis- 
sion aspects," 82 and maintain the capabilities to execute traditional mission areas 
of space support, force enhancement, space control, and force application. 83 
The use of information operations to protect our communication systems and 
data links, while being able to interfere with the communications and data of ad- 
versaries, is wholly consistent with National Space Policy guidelines. 

Assurance of space access by the US is also included in the Department of 
Defense's new space policy set forth in DoD Directive 3100.10. 84 Announced 
on July 9, 1999, this policy not only echoes the guidance of the National Space 
Policy, it also specifically refers to the need to maintain "information superior- 
ity." 85 Moreover, the wide variety of information operations that could be used 
to defend against attacks upon our space systems and to assure space control is 
consistent with it. 

Recalling the position of many nations involved in COPUOS and the 
CD, many of the US national and Department of Defense space policy state- 
ments may run counter to the concept of de-militarizing space. 86 Perhaps 
most significantly, the first sentence of the DoD policy unequivocally an- 
nounces that "space is a medium like the land, sea, and air within which mili- 
tary activities shall be conducted." 87 Many nations represented in COPUOS 
and the CD do not view outer space as analogous to "the land, sea or air," but 
rather more like Antarctica, where they have expended much effort to ex- 
clude nearly all military activities. 

When the statements of scholars and politicians from other nations are 
compared generally to those in the US, a clear difference of opinion regarding 
the proper role of the military in space, including the use of information oper- 
ations, emerges. While information operations may or may not be consistent 
with international opinion, they are consistent with both the national and 

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DoD space policies. Having considered world opinion on the issue, we turn to 
the applicable international law as it relates to information operations in or 
transiting space. 

Overview of Space Law Applicable to Information Operations 

There currently exist no "thou shalt nots" in space law which specifically re- 
fer to the term or concept of "information operations." In fact, there are very 
few specific military activities of any kind that are restricted or prohibited. 88 For 
instance, one will not find among the current space law treaties any specific ref- 
erence to space lasers, anti-satellite weapons, kinetic energy guns, or informa- 
tion operations. For the most part, when examining space law provisions, a legal 
practitioner needs to work with general principles that must be applied on a 
fact-specific basis. Therefore, we will focus on those laws having a general appli- 
cation to the concept of information operations and then apply them to specific 
scenarios. 

One means of using information operations to protect our national security 
interests in space is by controlling our adversaries' access to information through 
techniques that will interrupt, interfere with, or deny critical satellite data. At 
times, this can be particularly sensitive since denying data to an adversary that 
does not own its own space system may require disrupting a third party's space 
system. This, in turn, may disrupt access to data for other users who may not be 
involved in the conflict with the US. Using information operations for such a 
purpose requires careful consideration of the law as well as national policy and 
security interests. 

US Policy on GPS Data Interference 

One such national policy relates to the use of US GPS data. GPS data can be 
accessed in two ways. The first is through the normal operation mode of the 
standard positioning service (SPS). This method allows access by all users, but it 
also enables the US to downgrade the data provided to certain users through use 
of various degradation technologies and cryptography. The second means of ac- 
cess is the GPS Precision Positioning Service (PPS), which is granted only to 
DoD users and enables them to receive a clear signal with properly encrypted 
GPS receivers. Thus, the US military could seek to intentionally impair the nav- 
igational signals released by its global navigation system in the SPS mode to pro- 
tect national security interests. 89 Such interference would only temporarily 
prevent commercial users and others from obtaining the same quality of 

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information the US needs for its military operations. It would also be preceded 
by a public notice warning other users of the intentionally impaired signals. 
Since this particular GPS belongs exclusively to the US, the United States can set 
appropriate limits on its use by third parties. 

However, on March 29, 1996, the Clinton Administration announced a new 
national policy that would eventually remove prior military restrictions on the 
management and use of the US-owned GPS. As part of that new policy, the US 
committed itself to "discontinue the use of GPS Selective Availability (SA) 
within a decade in a manner that allows adequate time and resources for our mil- 
itary forces to prepare fully for operations without SA." 90 The policy also stated 
that GPS would be provided free of charge to the rest of the world for peaceful 
uses on a continuous basis. 

This current policy should not unduly limit DoD information operations ac- 
tivities designed to impair or interrupt US GPS signals when necessary. By its 
terms, the policy allows the US to continue selective availability measures until 
alternative measures allow military forces to operate without them, even if the 
data is used for peaceful civil, commercial, and scientific purposes. Secondly, the 
policy directs the DoD to develop measures to prevent the hostile use of GPS, 91 
including defensive information operation measures. Finally, in the case of ac- 
tual armed conflict, this internally imposed policy decision would not preclude 
military use of information operations to affect an adversary's ability to use the 
GPS system, if deemed necessary for national security purposes. 

United Nations Treaties and Pronouncements 

1. Outer Space Treaty 

Although it was not the first international agreement to refer specifically to outer 
space, 92 the Outer Space Treaty which entered into force on October 10, 1967, 93 
has become the cornerstone multilateral agreement dealing with the use of space. 
Frequently described as the "Magna Carta" of outer space, 94 its significance cannot 
be over emphasized. It provides the basic framework of international space law, in- 
corporated many of the principles set forth earlier in the non-binding 1963 Declara- 
tion of Principles, 95 has been the basis of subsequent space law treaties, and contains 
several provisions that have general application to information operations. 

Article 1(1) obligates parties to use outer space "for the benefit and in the interest of 
all countries" and provides that it is "the province of all mankind." Some schol- 
ars have asserted that this language means that States cannot encroach upon, or 
interfere with, the lawful activities of other States. 96 This language does not, how- 
ever, impose any legal constraints on military operations properly authorized 

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under international law. For example, military action pursuant to a Chapter VII 
Security Council resolution is, of course, an authorized activity for the benefit 
and in the interest of all countries, given the UN's authority to use force to pro- 
tect international peace and security. 

Article 1(2) expands on the use limitations of the first paragraph, stating that 
outer space shall be "free for exploration and use by all States without discrimi- 
nation of any kind." This language affirms the principle of free access to space 
and prohibits interference with that access. 97 The language of paragraph two also 
contains an important condition that the use of outer space be "in accordance 
with international law." Thus, if the military action is otherwise lawful, the fact 
it is conducted in outer space or through information operations does not violate 
this provision. 

Closely related to the freedom of access principle is the non- appropriation 
principle contained in Article II, which provides that outer space "is not subject 
to national appropriation by claim of sovereignty." While this language might 
suggest that information operations used to interfere with satellite signals or data 
are an act of unlawful appropriation of another State's space system, that view 
goes too far. Interference with a sovereign object is not the same as asserting a 
sovereign interest over outer space should that object be located there. Only the 
latter would violate the non-appropriation principle of Article II. The Law of 
the Sea Convention has similar language regarding claims over the high seas, 98 
but it clearly has allowed use of the high seas by military warships (sovereign ob- 
jects) without recognizing that interference with them constituted a claim of na- 
tional appropriation over the high seas. Absent a claim of sovereignty over the 
high seas, interference with warships on the high seas has not been deemed 
equivalent to an unlawful appropriation. In both cases, what is prohibited is the 
assertion of territorial claims. 99 

Another potential limitation on information operations is contained in Arti- 
cle IV. This article contains the key provisions relating to military activity in 
space. Paragraph 1 prohibits nations from orbiting, installing on celestial bodies, 
or stationing in outer space any nuclear weapons or "any other weapons of mass 
destruction." The meaning of the term "weapons of mass destruction" (WMD) 
has "typically been defined as weapons that are intended to have indiscriminate 
effect upon large populations and large geographical areas." 100 It is generally ac- 
cepted to include nuclear, chemical, and biological weapons. 101 Even though 
WMD could also include other weapons, notwithstanding the Russian position 
statement to the contrary, 102 the use of an information weapon is not likely to be 
viewed by the US as a weapon of mass destruction. 103 Ordinarily, its effects can 
be controlled so as not to destroy large numbers of people. For example, the 



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selective disabling by information operations of a particular computer system 
does not come within the meaning ofWMD in Article IV. 

For the most part, Article IV, paragraph 2, deals with the moon and other ce- 
lestial bodies. Among other restrictions, it states that, "[t]he moon and other ce- 
lestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful 
purposes." It also states that "[t]he use of military personnel for scientific research 
or for any other peaceful purposes shall not be prohibited." Despite the fact that the 
"peaceful purposes" language does not expressly refer to the domain of outer 
space, historically the US and other nations have generally agreed that activities 
in outer space should also be confined to peaceful purposes. 104 Nonetheless, it 
has been the US view that the peaceful purpose language does not preclude law- 
ful military activity. 105 While this conclusion seems clear, determining which 
military activities in outer space are considered "peaceful" 106 has been a topic of 
contentious debate. Indeed, from the moment the Outer Space Treaty was 
drafted, the international community has been divided on this issue. 107 

Advocates for the position that the "peaceful purposes" language excludes all 
military activity other than scientific research often cite to similar language in the 
Antarctic Treaty of 1959 108 and the conforming practice of nations in 
Antarctica. However, such a comparison is both misleading and inappropriate. 
Article 1 , paragraph 1 of that treaty states that "Antarctica shall be used for peace- 
ful purposes only." While this portion of the treaty is similar to the "exclusively 
for peaceful purposes" language of the Outer Space Treaty, the analysis is inapt. 
What many of these advocates fail to mention is additional language that is not 
found in the Outer Space Treaty. Immediately following the reference to 
"peaceful purposes," the text of the Antarctic Treaty states that "[t]here shall be 
prohibited, inter alia, any measures of a military nature . . . ." It is the additional 
language contained in the Antarctic Treaty, and not found in the Outer Space 
Treaty, that distinguishes the interpretation of the "peaceful purposes" 
language. Furthermore, State practice in Antarctica in 1959, when the treaty was 
drafted, was exclusively non-military while State practice in space in 1967, when 
the Outer Space Treaty was signed, was overwhelmingly military in nature. 

The US view that Article IV does not preclude lawful military activity is also 
supported by the historical context in which the Outer Space Treaty came into 
existence. When the Outer Space Treaty was signed, its two primary drafters, 
the US and the Soviet Union, were already using outer space for military pur- 
poses. It is unlikely that the Outer Space Treaty was intended to proscribe exist- 
ing practice by its two primary drafters. 109 The idea that "peaceful purposes" 
meant at least some military use was also consistent with the US space policy at 
the time. For instance, President Eisenhower declared to Congress, when the 

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National Aeronautical and Space Administration (NASA) was established, that 
the US was committed to the principle that "outer space be devoted to peaceful 
and scientific purposes." 110 Similarly, the Aeronautics and Space Act of 1958 
contained language that "it is the policy of the United States that activities in 
space shall be devoted to peaceful purposes for the benefit of all mankind." 111 
Despite use of such language, that same act provided for military departments to 
conduct space activities, including the development of weapons systems, mili- 
tary operations, and the defense of the US. Thus, the US has never interpreted 
"peaceful purposes" to mean only non-military activity. Rather, the US posi- 
tion has consistently been that the concept of "peaceful purposes" only prohibits 
aggressive military activity contrary to international law. 112 In 1962, Senator Al- 
bert Gore, Sr. stressed this distinction before the UN General Assembly. He 
urged that the "test of any space activities must not be whether it is military or 
non-military, but whether or not it is consistent with the UN Charter and other 
obligations of law." 113 While this view is not held by all, 114 it now appears to 
represent the international consensus 115 and is consistent with Article III of the 
treaty, discussed later. Therefore, any information operations undertaken in 
self-defense pursuant to a Security Council resolution, or in accordance with 
any recognized lawful purpose, would not be prohibited by either Article IV or 
other portions of the Outer Space Treaty. Moreover, during any period of inter- 
national armed conflict, it is unlikely that these provisions would even apply be- 
tween the belligerents who were parties to the treaty. While there are several 
views as to the test for when a treaty is abrogated or suspended by war between 
belligerent parties, the fundamental principle is the compatibility between the 
particular treaty provisions at issue and a state of war or armed conflict. Since the 
issue depends on the "intrinsic character" of the treaty provisions in question, 116 
to the extent the Outer Space Treaty provisions being discussed here are incom- 
patible with the object and purpose of armed conflict, they would most likely be 
suspended. 

Finally, Article IX has the most direct application to the issue of information 
operations that interfere with the use of outer space by other nations. Indeed, the 
language of this article echoes principles enunciated earlier in the 1963 Declara- 
tion. In addition to requiring all States to conduct their activities in outer space 
"with due regard" for the interests of other States, it goes on to declare the 
following: 

If a State Party to the Treaty has reason to believe that an activity or experiment 
planned by it or its nationals in outer space, . . . would cause potentially harmful 
interference with activities of other States Parties in the peaceful exploration and use 

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of outer space, ... it shall undertake appropriate international consultations before 
proceeding with such activity. . . . (emphasis added) 

Through this provision, the Outer Space Treaty made legally binding the 1963 
Declaration's principle of prior consultation based on the potential for harmful 
interference in the space activities of another State. 

Although the provisions cited above are likely to be interpreted in the interna- 
tional community to mean that "harmful interference" is prohibited, there are 
two important limitations to this prohibition as applied to information operations. 
The first is that the interference must be directed toward the "peaceful" use of 
space by other States. It is clear that a State may lawfully interfere with the space 
activities of other States when such activities are pursuant to a lawful use of mili- 
tary force. The second limitation is that the interference to the space system of 
another must be "harmful." Information operations that intrude upon, tap into, 
or monitor other space systems communications or other data for a military pur- 
pose can arguably be conducted without "harming" the space system of the 
other State, and to the extent they do no harm, they do not violate Article IX of 
the Outer Space Treaty. 117 Of course, regardless of such an argument, the State 
whose system was intruded upon would probably beg to differ. In fact, even if 
the intrusion were deemed not to violate Article IX, the political fallout could 
be extremely problematic. 

Article III is perhaps the most important and illuminating of all the Outer 
Space Treaty provisions, the one which puts all the others into proper con- 
text. Article III states that the Parties "shall carry on activities in the explora- 
tion and use of outer space . . . in accordance with international law, including the 
Charter of the United Nations, in the interest of maintaining international peace 
and security . . . ." (emphasis added) It is this standard, far more than the 
oft-cited concept of peaceful purposes, that is central to whether or not activi- 
ties in outer space comply with the Outer Space Treaty. While academic dis- 
cussions will invariably center around the peaceful purposes language, military 
commanders, planners, and operators who are considering activities in outer 
space should focus instead on whether the military activity is lawful under the 
traditional law of armed conflict. If a nation's military activities are conducted 
"in accordance with international law" and the Charter of the UN, then the 
Outer Space Treaty recognizes that such activities can be in the interest of in- 
ternational peace and security. Consequently, it is Article III, not Article IV, 
that should be the primary focus of attention. Since the UN Charter is one of 
the standards cited in Article III, it is appropriate that we turn to that 
instrument. 



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2. UN Charter 

Article 1 of the UN Charter expressly states that the purpose of the UN is to 
"maintain international peace and security." Accordingly, military activities 
aimed at restoring peace and conducted pursuant to a UN mandate or otherwise 
consistent with the Charter would be for a peaceful purpose. Article 39 of the 
Charter authorizes the Security Council to determine if a threat to peace, a 
breach of peace, or an act of aggression exists such that measures to restore inter- 
national peace and security are required. Included among the lawful measures 
that the Security Council is authorized to direct in restoring peace and security 
are those set forth in Article 41 , which include "the complete or partial interrup- 
tion of. . . rail, sea, air, postal, telegraphic, radio, and other means of communication" 
(emphasis added). Clearly, information operations which have the effect of in- 
terrupting communications, and which are conducted pursuant to Article 41, 
would not only be lawful but an act undertaken to maintain or restore interna- 
tional peace and security. Therefore, such information operations would also be 
consistent with the Outer Space Treaty. 

The UN Charter goes even further in allowing for military action to maintain 
or restore international peace and security. Article 42 authorizes "such ac- 
tion ... as may be necessary to maintain or restore international peace and secu- 
rity" when Article 41 measures would be, or have proven to be, inadequate. By it, 
the Security Council has the authority to direct its members to "use all necessary 
means" to carry out Chapter VII peace enforcement measures, and, indeed, past 
resolutions such as Security Council Resolution 678 (DESERT STORM) in 
1990 118 and Security Council Resolution 1264 (East Timor) in 1999 119 have con- 
tained this language. Coupled with the "all necessary means" language of a Secu- 
rity Council resolution, Article 42 allows information operations of far greater 
scope than merely interrupting communications, as authorized by Article 41. In 
determining the lawfulness of a particular information operation, it is necessary to 
evaluate the factual context, not just the type of information operation conducted. 

Information operations can also be undertaken for purposes of individual or 
collective self-defense, an inherent right of all nations clearly recognized by Arti- 
cle 51 of the Charter. The mere fact that information operations affect space sys- 
tems, or are conducted from outer space, does not make those operations illegal. 

International Consortia and Other International Agreements 

1. International Telecommunications Convention (ITC) 

The ITC is the basic charter for the International Telecommunications Un- 
ion (ITU), one of the oldest existing international organizations. 12 ° The ITU 

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directly oversees the communications satellite industry, arguably the most im- 
portant sector of outer space activity. 121 A specialized agency of the United Na- 
tions since 1945, 122 it has been used by the UN to promote international 
cooperation in space 123 through the regulation of telecommunication services 
and allocation of radio frequencies. 

Article 45(1) of the most recent ITU Convention, which was adopted in 
Geneva in 1992 and amended by the Plenipotentiary Conference at Kyoto in 
1994, requires that all telecommunication stations operate so as not to cause 
"harmful interference" to the radio service or communications of other Mem- 
bers. 124 The convention defines "harmful interference" as "[interference 
which endangers the functioning of a radionavigation service or of other 
safety services or seriously degrades, obstructs or repeatedly interrupts a 
radio-communication service operating in accordance with the Radio Regula- 
tions." 125 According to at least one scholar, the term is intended to be broadly 
interpreted and covers "any kind of damaging or destructive activity." 126 While 
this interpretation may have some academic value, it is not widely held, is not 
consistent with the express language of the ITC, and certainly does not represent 
the position of the United States. 127 

Information operations, such as implanting a trap door into the communi- 
cations network of a potential adversary or setting up another type of then be- 
nign, but potentially destructive, cyber agent in the telecommunications 
system of another State, might be seen by some as "harmful interference." Ar- 
guably, because the purpose of its presence is to enable harmful interference or 
provide destructive capability when needed, the fact that an information oper- 
ation mechanism is currently benign does not mean it is non-harmful. It would 
be difficult to show that this type of interference endangered the functioning 
of a service, seriously degraded it, or served to repeatedly interrupt it. How- 
ever, even if there were found to be "harmful interference" from the activity, 
if the implanting of latent viruses or other cyber instruments were taken against 
a military network of another State, there would be no ITC violation. The 
ITC restrictions provide a recognized exception for "military radio installa- 
tions" through Article 48(1). A more difficult situation arises when the activity 
affects a dual-use civilian telecommunication system, one used for both civilian 
and military purposes. 

Finally, the ITC does not provide for its continued application between Party 
belligerents during armed conflict. Since its provisions are not compatible with 
the object and purpose of such hostilities, they will likely be considered sus- 
pended between the belligerents throughout the duration of any international 
armed conflict. 128 Thus, the only time the provisions in the ITC would apply 

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and possibly restrict some types of information operations would be when they 
do not rise to such a conflict level. 

2. INTELSAT Agreement of 1973 

Through the International Telecommunications Satellite Consortium 
(INTELSAT) , the US initiated the first worldwide commercial telecommuni- 
cations satellite system. 129 Created to encourage global nation-to-nation public 
satellite service, 130 INTELSAT reflects the US view of space law and policy. For 
example, within its basic structure, the consortium allows nations to invest and 
own shares in the organization, instead of it being organized along the old one- 
nation, one-vote concept. This voting and profit sharing formula reflects the US 
positions that space is to be used for the "benefit of mankind," and that the 
"province of mankind" does not require an equal apportioning of space 
wealth. 131 Despite these "American" views of space law, the Soviet Union 
joined INTELSAT in 1991 ; 132 there are currently 143 member countries. 
INTELSAT operates the world's most extensive global communications satel- 
lite system in existence, and DoD has been a user of the system from its ad- 
vent. 133 

Articles III (d) and (e) of the INTELSAT Agreement describe military use of 
INTELSAT services. These provisions set forth a clear proscription on using 
"specialized telecommunications services" for military purposes. However, that 
proscription does not preclude INTELSAT from providing standard "public 
telecommunications services" to a military force for a military purpose. 134 In 
fact, according to a COMSAT legal opinion, aside from the limitation on using 
"specialized" services, "there is nothing in the INTELSAT Agreement that pro- 
hibits or discourages the use of INTELSAT for either US national security or in- 
telligence purposes." 135 

The more difficult issue is the interruption, denial, or even destruction, of the 
data or data links from an INTELSAT system. There is nothing in the 
INTELSAT Agreement 136 that specifically prohibits interference with commu- 
nication systems, although it certainly is implied throughout the agreement. 137 
For example, Article XIV(d) of the agreement requires a party or signatory to 
consult with the Assembly of Parties and furnish all relevant information prior to 
using an INTELSAT space segment in a way that might prejudice the establish- 
ment of direct telecommunication links of other members. 

INTELSAT's requirements of prior consultation and disclosure in advance of 
an operation would be completely unfeasible in the context of a military in- 
formation operation. Absent some agreement with the members to the con- 
trary, a Security Council resolution authorizing "all necessary means" under a 

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Chapter VII action, or some other lawful justification, this INTELSAT provi- 
sion could serve to require disclosure and thus limit peacetime military informa- 
tion operations activities that interrupt, deny, or destroy another's data from an 
INTELSAT service. However, as with the other international agreements, dur- 
ing a period of international armed conflict, these limiting INTELSAT require- 
ments will likely be viewed as suspended between the parties to the conflict, thus 
allowing jamming, destruction of ground stations belonging to an adversary, or 
other information operations. 138 

3. INMARSAT Convention 

The International Maritime Satellite Organization (INMARSAT) was 
formed in 1976 139 to extend the INTELSAT framework to include maritime 
communications and certain maritime nations excluded from INTELSAT. 140 
While its purpose was to provide space connections necessary to improve mari- 
time and aeronautical communications, it has expanded into other systems, such 
as mobile communications. 141 

Article 3(3) of the INMARSAT Convention 142 provides that "the Organiza- 
tion shall act exclusively for peaceful purposes." Initially, INMARSAT took the 
view that military uses per se were not compatible with peaceful purposes unless 
they were for distress and safety or purposes recognized by international human- 
itarian law. 143 Much like the Outer Space Treaty, the INMARSAT Conven- 
tion, in Article 12(l)(b), obligates the INMARSAT Assembly of Parties to 
ensure its activities are consistent with the UN Charter. INMARSAT'S "peace- 
ful purposes" language must therefore be read in the context of the UN Charter. 
When that is done, it becomes clear the INMARSAT Convention does not 
prohibit military action conducted under the auspices of the UN Security 
Council, legitimate individual or collective self-defense, or military action that is 
otherwise consistent with international law. 

A recent privatization development, however, may have rendered the entire 
discussion over the meaning of "peaceful purposes" in the convention moot. 
On April 15, 1999, the assets and liabilities of the INMARSAT intergovern- 
mental organization were transferred to a private company called, for lack of a 
better term, "new INMARSAT." 144 The new company's legal obligations arise 
out of its Memorandum of Association (MO A) and the Public Services Agree- 
ment (PSA) between it and the residual INMARSAT organization. The MOA 
requires new INMARSAT to "have due regard" for certain principles, includ- 
ing the "peaceful purposes" principle, but COMSAT's lawyers have taken the 
position that this language only requires the company to take those principles 
into consideration. 145 



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Similarly, while clause 2.3 of the PSA provides that "[t]he Company shall act 
exclusively for peaceful purposes," the INMARSAT Assembly believed this 
language was political in nature and without an enforcement mechanism for al- 
leged violations. 146 Therefore, according to the April 15, 1999, COMSAT 
General Counsel Opinion, "COMSAT envisions no circumstances in which 
the 'peaceful purposes' principle would be invoked as a reason to deny service to 
the US Department of Defense or units thereof." 147 That opinion, however, 
does not address whether "harmful interference" with a member's 
INMARSAT space segment or communication link would constitute a viola- 
tion of its "peaceful purposes" language. Since the new organization is still based 
on the INMARSAT Agreement, it is not clear to what extent a member might 
seek to claim a violation of the provisions of that agreement. On the other hand, 
since new INMARSAT is now privatized, perhaps the only remedy to the pri- 
vate company shareholders would be contractual in nature. Regardless, poten- 
tial disputes with offended nation shareholders will likely be avoided if the 
proposed military action is taken pursuant to the UN Charter or other interna- 
tional law. 

4. Arms Reduction Treaties 

Arms reduction treaties also contain provisions affecting the use of informa- 
tion operations. For instance, the ABM Treaty, in Article XII(2), was the first to 
preclude any activity which interfered with the "national technical means of 
verification" of treaty compliance by the other Party. Most other arms reduction 
treaties, such as SALT II and the START Treaty, have similar language. 148 
While these formerly bilateral treaties are limited in the number of Parties in- 
volved, and there are concerns about what constitutes an unlawful interference 
with the national technical means of verification, the interference issue is cer- 
tainly problematic. Although this matter merits further elaboration beyond the 
confines of this chapter, suffice it to say that information operations must be con- 
ducted so as to avoid interfering with national verification means during times 
other than international armed conflict. 

5. Principles of the Law of Armed Conflict 

Readily apparent in this overview of space law applicable to information 
operations is that despite all the sophisticated technology involved and the 
potential application of additional treaties and consortia agreements, by and 
large, the legal principles are the same as those applicable to other places and 
means of warfare. Just because military operations are planned for a unique 
domain — space — using a unique method — information operations — does not 

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change the fundamental legal constraints with which militaries must abide. It is 
imperative, as with all military actions, that a particular information operation in 
space or affecting a space object be conducted pursuant to a lawful purpose and 
in a lawful way. It is this second aspect of lawfulness that raises the issue of law of 
armed conflict (LOAC) principles. Notwithstanding the claims of some infor- 
mation operations supporters that this method of warfare transcends the scope of 
existing law, LOAC applies readily to information warfare techniques. 149 

Any offensive use of electronic means during military operations would im- 
plicate the traditional law of armed conflict principles. These include the coun- 
terbalancing principles of military necessity and the avoidance of superfluous 
injury, as well as the corollary principles of distinction of combatants from non- 
combatants, proportionality, and chivalry. 150 

The principle of military necessity is used to distinguish between what is and 
what is not a proper subject of attack. 151 It recognizes that enemy forces, along 
with their equipment, are always a proper subject of attack absent some other 
overriding LOAC principle. Similarly, civilians and civilian property that make 
a direct contribution to the war effort may be attacked, as long as their damage or 
destruction would produce a significant military advantage 152 or accomplish a 
legitimate military objective. 153 The presence of a dual-use system, commonly 
found in the arena of space systems, makes targeting analysis more difficult, but it 
does not change the fundamental analysis. Dual-use systems complicate the de- 
lineation of purely military targets from purely civilian non-targets. Therefore, 
targeteers must resist the temptation to attack a civilian computer system, such as 
a banking system, university, stock exchange, or similar target, merely because 
their attacks may have some vague effect on the enemy. 

In a long and protracted conflict, damage to the enemy's economy and research 
and development capabilities may well undermine its war effort, but in a short and 
limited conflict it may be hard to articulate any expected military advantage from 
attacking economic targets. 154 

Accordingly, proposals to target civilian information systems must be exam- 
ined closely to determine whether there is a military necessity for the attack. 
Other potential targets requiring close operational and legal analysis could in- 
clude dual-use systems, such as navigation satellites or public communications 
systems, in which the data is provided through an international consortium such 
as INTELSAT, EUROSAT, or ARABSAT. Attacking data systems of interna- 
tional consortium organizations will likely affect many users of the data who are 
either not parties to the armed conflict or who are declared neutrals. Basically, 

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the target analysis will be the same when using information operations directed 
against space systems as it is using other means against other targets; it will just be 
more complex. 

A complementary principle to military necessity is the avoidance of superflu- 
ous injury. 155 International law "forbids the infliction of suffering, injury or de- 
struction not actually necessary for the accomplishment of legitimate military 
purposes. This principle of humanity results in a specific prohibition against un- 
necessary suffering [and] a requirement of proportionality." 156 It is the principle 
of superfluous injury that has led nations to agree to ban certain weapons. 157 In 
the context of information operations, it is difficult to imagine any specific use 
that has the potential of causing superfluous injury, but new technologies and 
uses require commanders to consider this principle. 

Another important LOAC principle, distinction, demands that combatants 
be distinguished from noncombatants, and that military objectives be distin- 
guished from protected property or places. 158 Only combatants and military ob- 
jectives are to be attacked. 159 Additionally, indiscriminate attacks and methods 
and means of combat are also prohibited. A further aspect of this principle is that, 
with very limited exceptions, only members of a nation's regular armed forces 
are entitled to use force against the enemy. 160 To distinguish between combat- 
ants and noncombatants, the rule developed that combatants must wear a dis- 
tinctive uniform. 161 In the case of an information operation initiated from a 
distant computer terminal, there is no practical need for the operator to be in 
uniform. However, this does not mean that the distinction between combatants 
and noncombatants during an information operation should not be retained. 

If a computer network attack is launched from a location far from its target, it may 
be of no practical significance whether the "combatant" is wearing a uniform. 
Nevertheless, the law of war requires that lawful combatants be trained in the law 
of war, that they serve under effective discipline, and that they be under the 
command of officers responsible for their conduct. This consideration argues for 
retaining the requirement that combatant information operations during 
international armed conflicts be conducted only by members of the armed 
forces. 162 

The principle of proportionality requires that any civilian injury resulting 
from a legitimate use of military force not be disproportionate to the military ad- 
vantages anticipated. 163 International law recognizes that attacks on lawful mili- 
tary targets can result in unavoidable collateral injury and damage to 
noncombatants and civilian property. 164 While the commander ordering the 

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attack is responsible for making this proportionality judgment, the defender has 
a responsibility to properly separate military targets from noncombatants and ci- 
vilian property. 165 Information systems may be legitimate military targets, but an 
estimate of collateral damage and the damage from attacking them must take 
into account whether, and to what extent, they provide essential services to 
noncombatants. 166 This will require thorough intelligence information on an 
adversary's computer systems and networks to aid a decision that must be made 
on a case-by-case basis. 

The final principle, chivalry, prohibits treachery or perfidy during armed 
conflict. 167 It demands a certain amount of fairness in offense and defense, as 
well as a certain mutual respect, honor, and trust between opposing forces. 168 
When stratagems of war are developed, belligerents must be cautious not to 
subvert humanitarian safeguards to effect purely military goals. 169 For example, 
using a computer "morphing" technique to create an image of an enemy 
leader informing his military that an armistice or cease-fire agreement has been 
signed, when in fact no such agreement exists, would be an illegal perfidious 
act. 170 

Due to the complexity of applying LOAC principles to information opera- 
tions against space systems, specific targeting proposals should be reviewed and 
approved in accordance with the rules of engagement in place and the proce- 
dures established by the National Command Authorities (NCA) or the Joint 
Force Commander, usually through a Joint Targeting Coordination Board. 171 
Overall, information operations must be conducted consistent with the Stand- 
ing Rules of Engagement (SROE) and may be used in individual or unit 
self-defense (as defined in the SROE) or with NCA approval. 172 

Application of General Law to Specific Scenarios 

Having set forth the general legal framework applicable to information opera- 
tions conducted in outer space or upon space systems, we now want to apply that 
framework to a series of escalating factual scenarios. While we hope these scenarios 
are somewhat realistic, they are not intended to imply that the United States or any 
other nation engages in such operations or even has the capability to do so. 

Scenario 1 : Implanting Sniffers and Trap Doors 

Nation A has a security organization that obtains information from the 
Internet and attempts to gain information from other nations' computers. Na- 
tion A is especially concerned with the activities of Nation B, which has been 

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hostile in the past. Consequently, Nation A's security organization has directed 
covert activities toward Nation B. Both nations are industrialized and have 
well-developed infrastructures. Additionally, both nations have a space program 
that includes surveillance and telecommunications satellites with ground-based 
downlinks which provide data to the computers. 

A security agent of Nation A reports to his supervisors that he has gained ac- 
cess, through the Internet, to the computer system that serves one of Nation B's 
unclassified military communications networks. This network uses space assets 
to ensure connectivity. He proposes implanting a trap door and "sniffer" that 
will, once in-place, remain inert and harmless, but which can be used to monitor 
data coming into this network. 

Discussion 

Obviously, gathering unclassified information readily available to the pub- 
lic is legal. However, implanting a trap door and "sniffer" which can be used to 
monitor space communication systems of another nation is more questionable. 
Most likely, such intrusions would violate the domestic laws of the offended 
State, but there is very little authority that, during peacetime, it would violate 
international law. 173 This type of information operation is likely to be viewed 
much as peacetime espionage is viewed, namely, of no significant concern unless 
serious practical consequences are shown. 174 As such, except for having to 
weather the diplomatic costs of protest and political rhetoric by Nation B, as- 
suming they are able to ascribe the intrusion to Nation A, international law nei- 
ther provides a remedy nor imposes any sanctions. 

Specific space law provisions similarly provide no legal restraint on this intru- 
sion. The Outer Space Treaty only applies to activities in outer space, the moon, 
and other celestial bodies and is, therefore, not applicable to an intrusion into a 
ground system. Assuming Nation B is an ITU member and the system intruded 
is a system regulated by the ITU, then some might suggest that the ITC applies. 
They would be in error. As noted above, Article 45(1) of the ITC prohibits 
"harmful interference" — that which "endangers the functioning" of a radio- 
navigation service or "degrades, obstructs or repeatedly interrupts" a radio com- 
munication service. Trap doors and "sniffers" do not degrade, obstruct, or 
interrupt communications. Moreover, such a cyber intrusion arguably does not 
"endanger the functioning" of the communication service. 

Likewise, such an act would not violate the UN Charter. Implanting a moni- 
toring device that establishes a passageway for future intrusions is all that this in- 
formation operation entails. Such implanting is akin to a covert intrusion into 
the command and control center of another country and placing a monitoring 

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device on the phones. This action would neither endanger international peace 
and security under Article 2(3) of the UN Charter, nor would it constitute a 
threat to the political independence of any State under Article 2(4). While this 
type of computer penetration might constitute a threat to the territorial integrity 
of a UN member State, it will likely be treated much like espionage, which State 
practice has clearly accepted, at least tacitly. As such, it can be accomplished with 
little risk of prosecution under international law or UN sanction. The fact this 
particular intelligence gathering activity is conducted using information opera- 
tions that impacts data from a space system, rather than more traditional means of 
espionage, does not change the basic equation. 

In sum, this first scenario does not present any legal obstacles or limitations 
under either space law or international law. Nonetheless, it could be highly vol- 
atile in the political arena and would present a delicate policy decision that must 
be made by the NCA. 

Scenario 2: Interruption of Command and Control Networks 

Tensions between A and B increase, but have not risen to the level of armed 
conflict. At this point, another security agent from Nation A gains access to one 
of B's unclassified military communications networks through the trap door 
previously implanted. He temporarily jams the network so that contact with B's 
orbiting satellites will be interrupted for a period of approximately 30 minutes. 
After about twenty minutes, Nation B's space technicians regain control of their 
satellite network and restore normal communications. There is no damage to 
the satellite or permanent disruption of its functions. 

Discussion 

Since this has not occurred during an armed conflict, some might argue that in- 
terfering with the satellite network of Nation B would constitute a violation of Arti- 
cle 45(1) of the ITC if the 20-minute interruption of communications is deemed to 
be "harmful interference." The ITC definition requires that the interference en- 
danger the functioning of a radionavigation service or other safety service, or seri- 
ously degrade, obstruct, or repeatedly interrupt a radio- communication service. 
Whether or not a 20-minute interruption of satellite communication constitutes a 
serious degradation or obstruction might depend on the precise nature of the com- 
munications that were interrupted. For instance, if critical search and rescue sys- 
tems were interrupted thereby resulting in the loss of life of Nation B citizens, then 
perhaps the interruption would be seen as harmful, even though the space system it- 
self may not have been damaged or harmed. 

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Under the UN Charter, there is some legal basis for the proposition that tak- 
ing control of another nation's communications system or space assets may in- 
terfere in the internal affairs of that nation thus violating its rights under the UN 
Charter. This would be especially true if the interruption resulted in loss of life as 
noted above. It might also be true if the space system interrupted was particularly 
important to Nation B's defense, such as a missile early warning system. Any de- 
termination that rights under the UN Charter were violated or not will depend, 
as it will under the ITC, on the precise nature of the system that is interrupted. In 
this scenario, Nation A's interruption of one of Nation B's unclassified commu- 
nication systems was temporary and it did not detract from sensitive military sys- 
tems. Absent at least resulting moderate damage or injury, an armed response in 
self-defense by Nation B would not appear to be justified. Most likely, the pri- 
mary costs of this scenario would be political in nature. 

Scenario 3: Moving an Adversary's Satellite Out of Effective Orbit 

Nation A knows that Nation B has a military reconnaissance satellite with 
high resolution capability that can provide Nation B with critical intelligence on 
the movements of Nation A's troops. Nation A is concerned about recent belli- 
cose statements made by Nation B toward Nation A and wants to mobilize sev- 
eral thousand troops along their shared border. In anticipation of the outbreak of 
armed conflict, Nation A covertly obtains internal access to B's classified military 
computer system and uses information operations to send false data instructions 
to the Nation B satellite. While this false data does not damage the satellite, it 
does cause the satellite to move into another orbit where its surveillance capabil- 
ities are rendered completely ineffective. 

Discussion 

As in the prior two scenarios, there is no physical damage or destruction in- 
volved with the satellite or systems of Nation B and armed conflict has not yet 
arisen. Unlike Scenario 2 though, this interference with Nation B's military sat- 
ellite will require Nation B to take steps to "recover" the satellite and restore its 
prior orbit before it can be effective. In effect, the satellite has been "kidnapped" 
at a militarily critical point, providing Nation A with a distinct military advan- 
tage should armed conflict occur. 

Since this scenario involves a military satellite and not an INTELSAT system 
or asset, the INTELSAT Agreement does not apply. Therefore, there is no re- 
quirement under Article XIV(d) of the INTELSAT Agreement of prior consul- 
tation or to provide all relevant data regarding the interference. Furthermore, as 

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Information Operations in the Space Law Arena 



long as the satellite was not engaged in conducting Nation B's "national techni- 
cal means of verification" of arms control obligations, the interference would 
not violate the ABM Treaty or similar arms control treaty verification provi- 
sions, 175 assuming A and B were Parties. 

The problem raised in this scenario derives again from the UN Charter. As- 
suming Nation B's satellite is considered part of Nation B's "sovereignty" or 
"territorial integrity," Nation A's actions to involuntarily move it out of orbit 
could be viewed as a "threat . . . against the territorial integrity or political inde- 
pendence of any state" in violation of Article 2(4). If so, the Security Council, 
under Article 39, would be authorized to decide what appropriate measures to 
take against Nation A to restore international peace and security. Given the na- 
tional security importance of this reconnaissance satellite to early warning, the 
Security Council might determine that this act rises to the level of an "armed at- 
tack" sufficient for Nation B to invoke its right of self-defense under Article 51 
of the UN Charter. In addition, Nation B might determine independently that 
the action requires it to invoke its inherent right of self-defense without waiting 
for a UN determination. 

Scenario 4: Destruction of Adversary's Satellite 

As anticipated, armed conflict has now broken out between Nations A and B. 
Nation A's troops, previously amassed along Nation B's border and heavily armed, 
have crossed into Nation B. Numerous reports indicate Nation A's troops have 
been firing at Nation B's military forces as they approach the nearest town. An 
emergency session of the Security Council has been called to address the situation, 
but no UN response has yet been authorized. Moreover, since Nation A is a close 
ally of a permanent member of the Security Council, a veto of any UN action 
against it is anticipated. Nation B's targeteers propose to destroy a key hub in the 
space communications system of Nation A and render its connected computers use- 
less. They plan to maneuver one of their own satellites within close range of one of 
Nation A's telecommunications satellite. This "killer" satellite has been equipped 
with a device that, when activated, will emit an electro-magnetic pulse which will 
disable all electronic devices within a ten-mile radius. Destruction of the targeted 
satellite, located in geosynchronous orbit over the area of armed conflict, will render 
Nation A's entire communication system inoperable. 

Discussion 

This scenario presents a clear armed conflict situation that very likely renders 
the Outer Space Treaty, the ITC, and any arms control agreements 

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Douglas S» Anderson and Christopher R. Dooley 



inapplicable. 176 If there is any doubt as to whether these international agree- 
ments were intended to be suspended or terminated during armed conflict, Na- 
tion B could make a prior declaration that it considers each of them inapplicable 
during this period of armed conflict with Nation A. 

Nation B could choose, for policy reasons, to treat this as an "armed attack" 
and exercise its right of individual self-defense, or it could treat A's incursion as 
"an act of aggression" under Article 39 of the UN Charter and seek Chapter VII 
sanctions through the UN. Before Nation B can exercise its right of self-defense 
through use of force, Article 33 of the UN Charter requires it to exhaust any 
available peaceful means of settlement, unless, of course, such efforts would be 
futile. 177 Seeking action through the Security Council would likely prove fruit- 
less, since Nation A is a close ally of a permanent member with veto authority. 
Regardless, Nation B's armed response must be necessary, timely, and propor- 
tionate to the wrong suffered. 178 

Given the military value to Nation A of this satellite system, there would be 
a legitimate military necessity in attacking this space asset. Destruction of Nation 
A's satellite would put the military aggressors at a distinct disadvantage in obtain- 
ing and disseminating intelligence and communication data without resulting in 
loss of life. Additionally, since the targeted space communications system is used 
for military communications, even though it also has a civilian use, there is a le- 
gitimate military reason to attack it. The principle of proportionality requires 
Nation B's commanders to make their best estimate of the military advantage to 
be gained and weigh it against their best estimate of the effect on the civilian 
population. The extent of injury or damage to the civilian population from in- 
terruption of a communication system through information operations is likely 
to be significantly less than from kinetic weapons. Additionally, this particular 
information operation, used as a weapon, is neither illegal per se under interna- 
tional law, nor are its effects necessarily indiscriminate. Indiscriminate weapons 
are those whose effects cannot be controlled, such as chemical and biological 
weapons. The wide area in which this weapon's effects will be felt do not make it 
indiscriminate, especially since its effects will be short-term, and limited to dis- 
abling electronic devices. 

Readily apparent from each of these scenarios is the importance of making a 
case-by-case assessment under international law, and more particularly, LOAC 
principles. As with any LOAC assessment, a proper determination of a specific 
information operation can only be obtained by applying the specific facts to the 
general legal framework. What makes the assessments of information operations 
directed at or from space systems more difficult is the lack of extensive State 
practice to rely on. 



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Practical Considerations in the Application of Information 
Operations in Space 

In addition to the legal regime applicable to information operations in outer 
space, military planners should also factor the unique physical aspects of space 
and the political consequences of specific military decisions into their calcula- 
tions. In this final section, we have attempted to set forth a few such consider- 
ations. Keep in mind however, that they are not based on legal constraints, but 
rather on the physical properties of outer space and the political climate of the 
international community. Additionally, these considerations are not intended to 
preclude a commander's discretion as to the appropriate military action to be 
taken given the specific military situation faced. 

First, any attack upon a physical target in space should seek to disable the 
space object without resorting to its physical destruction. Absent the effects of 
gravity and friction, fragments from physical destruction of space objects pres- 
ent a significant problem in outer space. Those fragments will naturally spread 
throughout the orbital path they came from in an unavoidable pattern that may 
not dissipate. Their velocity and mass will make them a threat to our own 
space vehicles and satellites. Confining the effects of that debris will be dim- 
cult, if not impossible. Certain information operations in space can provide an 
alternative to the military planner to outright physical destruction of an adver- 
sary's space object by destroying the computer links and data (its life support). 
Thus, "killing" of the object may be possible without creating a dangerous 
spread of fragments to our own space systems. 

Second, if a space system needs to be destroyed, consideration should be given 
to destroying it by attacking its ground segment, and thereby severing access to its 
"life support." Attacks on ground segments of communications systems have re- 
ceived long-standing public acceptance in the international community as an au- 
thorized means of conducting armed conflict as long as the target is a legitimate 
military target. A direct attack on a space segment in space, even if done consistent 
with international law, may not enjoy the same public acceptance. Given the im- 
portance of international opinion upon national leaders and their citizens, military 
action often attempts to avoid undue public outcry in making target selections. 
Therefore, if there is a choice, it may be better to take out an adversary's space ob- 
ject by attacking and destroying its ground segment. 

Third, destruction through "jamming" of a communication signal is preferable 
to destruction of the adversary's space object and accomplishes the same result — the 
enemy's inability to use that system. Just as ground attacks have received public ac- 
ceptance, so too has the technique of jamming. It is a common practice during 

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armed conflict and is clearly recognized as a legitimate means of attack. As such, and 
for reasons of avoiding undue public outcry, jamming should be considered as an al- 
ternative to the outright physical destruction of the space object. Additionally, jam- 
ming avoids the problem of unnecessary space debris. 

Fourth, a less intrusive electronic means of attack is often preferable to a ki- 
netic kill. Electronic attack can be a better means of avoiding detection while 
"masking" the identity of the perpetrator. When subtlety or plausible denial is 
desired for political reasons, or if there is a need to delay enemy detection of the 
attack, electronic means can be very effective. When an adversary's system goes 
down, they will not necessarily know it was the result of an intentional act by an 
enemy. This is especially so if the system is left operable, but has been manipu- 
lated so that the system data is, or appears to be, false. Depending on the system 
attacked, this manipulation can cause military planes to crash, artillery to miss its 
target, or enemy leaders to make poor decisions. 

No doubt, many other practical approaches to the use of information opera- 
tions in outer space or directed toward space objects have not been mentioned 
here. Those offered are but a limited start for planners and strategists when con- 
sidering the unique aspects of these two technologically driven realms (informa- 
tion operations and outer space) during armed conflict. 

Conclusion 

We began this chapter with the observation that when the technological trans- 
formations inherent in outer space systems are combined with that of information 
operations, yesterday's science fiction can quickly become today's reality. The need 
for militaries to keep pace is obvious. These technological transformations will re- 
quire innovative approaches to an ancient reality — armed conflict between belliger- 
ent nations. Information operations and modern space systems have created new 
warfighting scenarios that can, in turn, create confusion among military command- 
ers and planners as to what is lawful and what is not. It is imperative that operators 
and lawyers forge a partnership to meet this challenge. 

As for what is legal in the outer space environment, there are few surprises. 
Still relevant is traditional analysis under well-known principles of the law of 
armed conflict, customary international law, treaty obligations, and the UN 
Charter. Aside from the need to apply the existing analytical framework to new 
futuristic threats, there are few legal limitations impacting information opera- 
tions in or through outer space. 

The real challenge comes in understanding the expansion of international po- 
litical sensitivities to weapons in space and information operations directed at or 

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Information Operations in the Space Law Arena 



from outer space. During times of armed conflict, those sensitivities will not cre- 
ate violations of international law, but they can impede our actions through the 
political and diplomatic process. We should not underestimate the degree to 
which politics and diplomacy place limits upon otherwise lawful military activ- 
ity. Thus, with only a few exceptions, from a legal standpoint, information oper- 
ations in space are virtually no different than those conducted on the ground, in 
the air, or at sea. The primary difference lies in the diplomatic and political re- 
sponse of the international community. 

Moreover, the "CNN factor" has had a large role to play in the decisions of 
military commanders to employ ground, sea, and air assets in recent armed con- 
flicts. We can expect the influence of the "CNN factor" to grow exponentially 
if military commanders choose to employ information operations against objects 
in outer space, a much more sensitive arena. Indeed, because of this, command- 
ers may find their authority to choose targets and the means of attacking those 
targets withheld by the NCA in this arena more than any other. 

All that aside, however, once the political decision has been made, commanders 
should apply the same principles of international law they do in more conventional 
settings. They must avoid the dizzying distraction created by the vast array of new 
technological tools available to the military in the space arena; they must resist the 
temptation of expecting that these apparent futuristic tools require a whole new set 
of laws; and they must be willing to apply old laws and principles to new military 
scenarios. If they can do that, then tomorrow's commanders can maintain the legal 
high ground of warfare, while controlling the military high ground of outer space. 
This is not a matter of science fiction; it is reality. 

Notes 

* The authors would like to thank the following people for their assistance in reviewing this 
chapter: Mr. Phillip Johnson (Colonel, USAF, (ret.)), Mr. Michael Schlabs (Colonel, USAF (ret.)), 
Colonel Kevin Kennedy, (USAF), Lieutenant Colonel Mark Yost (USAFR), Lieutenant Colonel 
Jolinder Dhillon (USAF), Lieutenant Colonel Jeff Walker (USAF), and Lieutenant Colonel Jeff 
Rockwell (USAF). 

1. Nathaniel Borenstein, quoted from Zeebo's Marvelous Quotes, Quotes about Computers 
(Sept. 3, 2000) http://quotes.sterlingtechnology.com/key/key_Computers.htnil. 

2. For instance, military parades of the future could be comprised of rank after impressive 
rank of glistening computer terminals passing in review instead of shiny tanks and rifle-carrying 
soldiers; the sides of military computers of the future may be painted with rows of mean looking 
Internet wires to represent each "kill" of tomorrow's computer aces; and recruiting posters may 
have a picture of a computer geek with lines of pencils sticking out of his pocket protector and a 
caption beneath saying, "We want you!" While these scenarios are a bit far-fetched, there is no 
denying the importance of computers in the battles of the future. 

3. Pentagon Officials Warn of Electronic Pearl Harbor, MILITARY & C4I, March 11, 1999, at n.p. 



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Douglas S. Anderson and Christopher R. Dooley 



4. Charlie Williamson, Emerging Issues in Cyberdefense , ABA NATIONAL SECURITY LAW 

Report, Aug. 1999, at 2; A Report of the President of the United States, 
Preserving America's Privacy and Security in the Next Century: A Strategy 

FOR AMERICA IN CYBERSPACE, Sept. 16, 1999, at 6 [hereinafter referred to as REPORT OF THE 

President]. 

5. This rate of detection represents those that are reported. See Ted Uchida, School of 
Advanced Military Studies, US Army Command and General Staff College, Building a Basis for 
Information Warfare Rules of Engagement 8 (1997) (unpublished manuscript, on file with Naval 
War College Library), cited in Michael N. Schmitt, Computer Network Attack and the Use of Force in 
International Law: Thoughts on a Normative Framework, 37 COLUMBIA JOURNAL OF 
TRANSNATIONAL LAW 885, 893 (1999). 

6. The intruding teenage hackers were from California and aided by an Israeli teenager acting 
as their advisor. They were able to exploit a well-known weakness in an operator system called 
"Solaris." USIS Washington File, On Information Warfare Threat, MILITARY & C4I, Infowar.com, 
Dec. 14, 1998; See also Bradley Graham, U.S. Studies New Threat: Cyber Attack, WASHINGTON 
POST, May 24, 1998 at Al; WALTER GARY SHARP, SR., CYBERSPACE AND THE USE OF 
FORCE 20 (1999); E. Anders Ericksson, Information Warfare: Hype or Reality? 6 THE 
NONPROLIFERATION REVIEW, n.13 (1999). 

7. MILITARY AND C4I, supra note 3, at 3. 

8. SHARP, supra note 6, at 19. 

9. Schmitt, supra note 5, at 887. 

10. Bob Brewin, Kosovo Ushered in Cyberwar, FEDERAL COMPUTER WEEK, Sept. 27, 1999, at 1. 

1 1 . White Paper, The Clinton Administration's Policy on Critical Infrastructure Protection: 
Presidential Decision Directive 63 (May 1998). 

12. Kevin Poulsen, Info War or Electronic Saber Rattling? , ZDNN TECH NEWS NOW, (Sept. 8, 
1999), at 1-2. 

13. Id. The JTF-CND Commander reports to the SECDEF through the Chairman of the Joint 
Chiefs of Staff. The Commander "has directive authority over assigned forces designated by 
Service components for execution of the CND mission, and coordinates with and supports 
commanders of combatant commands." Williamson, supra note 4, at 2. 

14. USAF Scientific Advisory Board, New World Vistas, Air and Space Power 

FOR THE 21ST CENTURY (Information Applications Volume), at 3 (1995). 

15. Id. A presence in space implies influence, power, and security. 

16. Id. at 4. 

17. Michael Loescher, The Information Warfare Campaign, in ALAN D. CAMPEN, DOUGLAS H. 

Dearth & R. Thomas Goodden, Cyberwar 197 (1996). 

18. Report of the President, supra note 4. 

19. See Richard A. Morgan, Military Use of Commercial Communication Satellites: A New Look at 
the Outer Space Treaty and "Peaceful Purposes," 60 JOURNAL OF AIR LAW AND COMMERCE 237, 
248 (1994); SEAN P. KANUCK, Recent Development: Information Warfare: New Challenges for Public 
International Law, 37 HARVARD INTERNATIONAL LAW JOURNAL 272, 285 (1996). 

20. Gerald R. Hust, Taking Down Telecommunications 4 (1994). 

21. Id. 

22. Of particular application is 18 USCode 1367, a federal criminal statute that prohibits the 
intentional or malicious interference with the authorized operation of a communications or 
weather satellite without the authority of the satellite operator. Also potentially applicable, in 
addition to US wiretap laws and depending on where the cyber attack originates, is 18 US Code 
1030, which prohibits damaging protected computers by inserting viruses or other technological 
items; 47 US Code 333, which prohibits interference with licensed radio stations; and 47 US Code 
502, which prohibits violation of international radio or communications treaties. 



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23. Air Force Doctrine Document (AFDD) 2-5, Information Operations, Aug. 5, 1998. As an 
example of the different terms used by the various military services, and as noted in the text, the Air 
Force is the only service to employ the term "information-in-warfare." 

24. Id. Likewise, the Air Force definition of "information warfare" differs from that of DoD. 
For the Air Force, information warfare is a subcategory of information operations that is not 
confined to armed conflict. In contrast, the DoD sees "information warfare" as information 
operations "conducted during times of crisis or conflict." Id., glossary. 

25. John Deutsch, Testimony before the Senate Committee on Government Affairs (June 5, 
1996). 

26. John Arquilla & David Ronfeldt, Cyberwar is Coming, RAND (1992). 

27. Headquarters Air Force, International and Operations Law Division, Primer on Legal Issues 
in Information Operations, (draft), at 3 (1997). The term "offensive information operations" is 
intended to apply to the entire spectrum of military operations throughout peacetime through 
armed conflict, including military operations other than war. Offensive information operations 
embrace a great variety of activities, including psychological operations, military deception, 
jamming of enemy information systems, signals intelligence (SIGINT), and attacks on enemy 
information systems by physical destruction or by electronic means. 

28. "Cyberwar refers to conducting, and preparing to conduct, military operations according 
to information-related principles." ARQUILLA, supra note 26, at 6. 

29. Id. at 5. 

30. Daniel Kuehl, What's New about Information Warfare?, at 10 (March 21, 1997), 
(unpublished NDU paper), cited in YuLin G. Whitehead, Information as a Weapon, Reality 
versus Promises 19 (January 1999), (unpublished School of Advanced Airpower Studies paper, Air 
University). 

31. Interview by YuLin Whitehead with Daniel Kuehl, National Defense University, cited in 
Whitehead, supra note 31, at 19. 

32. Joint Publication 3-13, II-9; Air Force Doctrine Document 2-5, Information 
Operations, at 9 (Aug. 5, 98); Air Force Doctrine Document 2-2, Space Operations, at 8 (Aug. 
23, 1998). Winning the battle of information dominance requires that we achieve an edge in 
offensive exploitation of the enemy's vulnerabilities over its ability to penetrate our protective 
measures. 

33. Mao Tse-Tung, On Protracted War (1938), cited in Norman B. Hutcherson, 
Command and Control Warfare, Putting Another Tool in the War-fighters 
Data Base, at xih (1994). 

34. See HUTCHERSON, supra note 33, at xih. 

35. See generally, Department of Defense Space Policy contained in DoD Directive 3100.10, 
paragraph 4, specifically sub-paragraphs 4.3.1.4 and 4.3.1.7. 

36. Colin S. Gray, Explorations in Strategy 102 (1996); see also Colin S. Gray and 
John B. Sheldon, Space Power and the Revolution in Military Affairs, AIRPOWER JOURNAL, Fall 
1999, at 32. 

37. Gray and Sheldon, supra note 36, at 32. 

38. Control of Space Key to Future War, SPACE DAILY, May 10, 1999, at 1. There is also a 
political advantage to space forces over conventional forces. With conventional forces, policy 
makers have to contend with the possible loss of troops' lives when deploying them into battle. 
Use of space forces does not have that disadvantage. Major General DeKok, Air Force Space 
Command's Director of Operations and Plans, captured the difference when he remarked that, 
"Satellites have no mothers." Gregory Billman, The Inherent Limitations of Spacepower: Fact or 
Fiction? E-PRINTS, Sept. 22, 1999, at 21, www.fas.org/spp/eprint/billman.htm. 

39. Id. 



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40. Id. The basic GPS consists of a constellation of 24 satellites, their navigation payloads, and 
associated ground stations, data links, and command and control facilities, and is operated by the 
DoD. It has become an integral part of US military operations. 

41. The White House Fact Sheet, National Space Policy, Sept 19, 1996 at 1 [hereinafter Space 
Policy] . 

42. The following countries have communications satellites in orbit: Argentina, Australia, Brazil, 
Canada, China, Cuba, Finland, France, India, Indonesia, Italy, Japan, Malaysia, Malta, Mexico, New 
Guinea, Russia, Seychelles, Spain, Tonga, United Kingdom, and the US. Several other nations have 
access through cooperative agreements, such as the Association of Telecommunications State 
Enterprises of the Sub-Regional Andean Agreement (ASETA), comprised of Bolivia, Colombia, 
Ecuador, Peru, and Venezuela. See Morgan, supra note 19, at 247—248. 

43. T. S. Twibell, Note and Comment: Circumnavigating International Space Law, 4 ILSA 

Journal of International & Comparative Law, 259, 276 (Fall, 1997). In fact, as of 

November 21 , 1999, China had successfully launched into orbit its first spacecraft designed to carry 
humans in an effort to join the US and Russia in the elite club of manned space flight. The 
unmanned module orbited the earth 14 times before it parachuted into a field in Inner Mongolia, 
21 hours after taking off. Michael Laris, China Launches New Spacecraft Designed for Manned Flight, 
WASHINGTON POST, Nov. 22, 1999, at Al . 

44. Gerald Steinberg, Dual Use Aspects of Commercial High-Resolution Imaging Satellites, 

Mideast Security and Policy Studies, Feb. 1998, at 3. 

45. The latest of the SPOT imaging satellites, SPOT-4, has a 10 meter monochromatic 
resolution as well as an additional mid-infrared imaging capability. The French are presently 
working on SPOT-5A and 5B which they hope to launch in 2000 and 2003. See Steinberg, supra 
note 44, at 3. Satellites are now available to provide detailed images of any requested location in 
the world once every three days at a cost of as little as $100 per square mile. See Susan M. Jackson, 
Cultural Lag and the International Law of Remote Sensing, 23 BROOKLYN JOURNAL OF 

International Law 853, 854 (1998). 

46. Jackson, supra note 45, at 857. 

47. Id. at 858. 

48. On March 29, 1 996, President Clinton announced a new policy to terminate the practice of 
degrading civil GPS signals within the next decade, allowing for a better signal for commercial and 
civilian users of the GPS. The policy expressly states that it is meant to reaffirm the US 
commitment to providing basic GPS services for peaceful civil, commercial, and scientific users. 
Press Release, President Opens Door to Commercial GPS Markets; Move Could Add 100,000 
New Jobs to Economy by Year 2000, March 29, 1996. 

49. Lane, The Satellite Revolution, cited in Steinberg, supra note 44, at 16. 

50. G.A. Res. 1 148, 12 U.N. GAOR Supp. (No. 18), at 195, U.N. Doc. A/3805 (1957), para. 
1(f) ("the sending of objects through outer space shall be exclusively for peaceful and scientific 
purposes"); G.A. Res. 1348, 13 U.N. GAOR Supp. (No. 18), at 99, U.N. Doc. A/4090 (1958) 
("outer space should be used for peaceful purposes only . . . ."). 

51. The words of a former Commander-in-Chief of USSPACECOM, General Howell M. 
Estes, are indicative of this view: 

I, as a military commander, have to say that somebody is going to threaten them (our space 
assets); and when they [do], we [should] have armed forces to protect them. . . . [I] f there was 
ever a threat to our national security [in space] , the best - and only - way to solve the problem 
is to take weapons into space. 

Cited in Jose Filho, Total Militarization of Space and Space Law: The Future of Article IV of the '67 
Outer Space Treaty, PROCEEDINGS OF THE FORTIETH COLLOQUIUM ON THE LAW OF 

Outer Space 358, 360 (1997). 



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52. G.A. Res. 1472 (Dec. 12, 1959). Actually, COPUOS began as an Ad Hoc Committee on 
September 18, 1958. Its first report, adopted as Resolution 1348 on December 13, 1958, stressed 
that outer space should be used only for peaceful purposes. The next year, General Assembly 
Resolution 1472 made the Ad Hoc Committee a permanent UN committee. 

53. Those four treaties are: (1) The Treaty on Principles Governing the Activities of States in 
the Exploration and Uses of Outer Space, including the Moon and Other Celestial Bodies 
(known as the Outer Space Treaty of 1967), done]zn. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 
6347; 610 U.N.T.S. 205, (entered into force Oct. 10, 1967); (2) Agreement on the Rescue of 
Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space 
(known as the Rescue and Return Treaty of 1968), done Apr. 22, 1968, 19 U.S.T. 7570, 
T.I.A.S. No. 6599, 672 U.N.T.S. 119, (entered into force Dec. 3, 1968); (3) The Convention on 
International Liability for Damage Caused by Space Objects (known as The Liability 
Convention of 1972), done Mar. 29, 1972, 24 U.S.T. 2389, T.I.A.S. No. 7762, 961 U.N.T.S. 
187 (entered into force Sept. 1, 1972); and (4) The Convention on Registration of Objects 
Launched into Outer Space (known as The Registration Convention of 1975), opened for 
signature Jan. 14, 1975, 28 U.S.T. 695, T.I.A.S. No. 8480, 1023 U.N.T.S. 15 (entered into force 
Sept. 15, 1979). A fifth UN sponsored space treaty is The Treaty Governing the Activities of 
States on the Moon and Other Celestial Bodies (known as The Moon Treaty of 1979). It has 
only been ratified by 9 nations and none of the major space powers. 

54. G.A. Res. 1721, U.N. Doc. A/5100 (1961). See also John E. Parkerson, Jr., International 
Legal Implications of the Strategic Defense Initiative, 116 MILITARY LAW REVIEW 67, 95 (1987). 

55. U.N. Doc. A/5515 (1963). 

56. The Committee has two standing Subcommittees of the Whole: the Scientific and 
Technical Subcommittee and the Legal Subcommittee. The Committee and two Subcommittees 
meet each year to discuss and study questions put to them by the General Assembly. They in turn 
make recommendations to the General Assembly and provide information from their meetings 
and studies in their annual reports. See the COPUOS web page at www.un.or.at/OOSA/ 
copuos.html. 

57. G.A. Res. 51/44 (Jan. 7, 1997). 

58. See G.A. Res. 53/583 (Dec. 4,1998); G.A. Res. 52/56 (Feb. 12, 1998); G.A. Res. 51/123 
(Feb. 10, 1997); G.A. Res. 51/122 (Feb. 4, 1997); and G.A. Res. 49/34 (Jan. 30, 1995). Also of 
interest is what these resolutions do not address: namely, the important contribution of military 
activity toward promoting international peace and security, such as reconnaissance satellite data 
that allows for the more effective verification of arms control agreements. 

59. Nathan C. Goldman, American Space Law: International and Domestic 

26 (2d ed. 1996). Goldman also notes that more nations became aware of the values of space and 
sought to join the committee to protect their interests. COPUOS tripled in size in 1982, from 18 
members to 53. According to Goldman, the "drastic increase in size alone would guarantee a 
harder time for obtaining consensus." 

60. Id. at 25. 

61. The UN Charter does not grant the General Assembly legal authority to make binding 
substantive international law. See Andrei D. Terekhov, UN General Assembly Resolutions and Outer 
Space Law, PROCEEDINGS OF THE FORTIETH COLLOQUIUM ON THE LAW OF OUTER SPACE 
97 (1997). 

62. The following principles derived from the four major space treaties have also been generally 
accepted as reflecting customary international law: 

(1) That outer space is free for exploration and use by all nations; that it is not subject to 
national appropriation by any means; 

(2) That activities in outer space shall be conducted with due regard for the interests of other 

States; 



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Douglas S. Anderson and Christopher R. Dooley 



(3) That States that launch space objects are liable for any damage they may do in space, in the 

air, or on the surface of the Earth. That there are two liability standards established for 
damage caused by "space objects;" a fault-based standard that applies to damage done to 
items in space and an absolute liability standard that applies to damage done on the 
surface of the earth or to aircraft in flight; and 

(4) Outer space activities are subject to general principles of international law, including the 

UN Charter. 
See Office of General Counsel, Department of Defense, An Assessment of International Legal 
Issues in Information Operations (Nov. 1999) [hereinafter DoD/GC Paper]. The paper is 
appended to this volume as the Appendix. 

63. See Terekhov, supra note 61. 

64. See the Conference on Disarmament web page at www.unog.ch/frames/disarm/ 
disconf.htm. 

65. P.K. Menon, The United Nations' Efforts to Outlaw the Arms Pj^ce in 
Outer Space 65 (1988). 

66. Id. 

67. Id. at 66. 

68. Id. 

69. Treaty Between the United States of America and the Union of Soviet Socialist Republics 
on the Limitation of Anti-Ballistic Missile Systems, signed on May 26, 1972, 23 U.S.T. 3435, 944 
U.N.T.S. 13, TIAS 7503 {ratified by the US on Sept. 30, 1972); Rebecca Johnson, Multilateral Arms 
Control: Can the CD Break the Impasse?, www.armscontrol.org/ACT/novdec97/johnson.htm. 

70. See Johnson, supra note 69, at 6. 

71. See DoD/GC Paper, supra note 62. 

72. China Defense White Paper, July 1998, http://russia.shaps.hawaii.edu/security/ china- 
defense-julyl998.html (on file with authors). 

73. Id. at 24. 

74. Id. 

75. In an article published in the Liberation Army Daily, official Chinese newspaper of the 
Communist Party-run political department of the Peoples Liberation Army (PLA), entitled 
"Bringing Internet Warfare Into the Military System Is of Equal Significance with Land, Sea, and 
Air Power," China seems to have changed its view about the use of information operations. 
According to the Beijing article, China is preparing to "carry out high-technology warfare over 
the Internet and could develop a fourth branch of the armed services devoted to information 
warfare." The article also stated: 

It is essential to have an all-conquering offensive technology and to develop software 
and technology for Net offensives so as to be able to launch attacks and countermeasures on 
the Net, including information-paralyzing software, information-blocking software, and 
information-deception software. 

The article went on to apply this new means of warfare to outer space: 

Modern high-tech warfare cannot win without the Net, nor can it be won just on the Net. 
In the future there must be a coordinated land, sea, air, space, electronic and Net warfare, and 
the state's determination will be fully expressed in this mysterious theater space (emphasis 
added). 

Quoted in Bill Gertz, China Plots Winning Role in Cyberspace, THE WASHINGTON TIMES, Nov. 
17, 1999, atAl, A8. 

76. Agenda item number 3, Report of the Conference on Disarmament to the General 
Assembly of the United Nations, at 2 (Sept. 8, 1998). 



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Information Operations in the Space Law Arena 



77. CD/1487, Working Paper Concerning CD Action on Outer Space (Jan. 21, 1998). 

78. Id. 

79. Space Policy, supra note 41, at 4 (Sept. 19, 1996). 

80. See Filho, supra note 51, at 358; see also Maurice N. Andem, Implementation of Article IV of the 
Outer Space Treaty of 1967 During the 21st Century, PROCEEDINGS OF THE FORTIETH 

Colloquium on the Law of Outer Space 338 (1997). 

81. Space Policy, supra note 41, at 1. 

82. Id. at 5, para. (6)(b). 

83. Id. at 5, para. (6)(a). 

84. DoD Directive 3100.10, paragraph 4.3., states that "[t]he primary DoD goal for space and 
space-related activities is to provide operational space force capabilities to ensure that the United 
States has the space power to achieve its national security objectives . . . ." That includes assuring 
access to space (para. 4.3. 1 .2.) and ensuring that hostile forces cannot prevent our use of space (para. 
4.3.1.4.). 

85. Memorandum for Secretaries of the Military Departments, July 9, 1999, at 2 (on file with 
authors). 

86. In September 1994, former Secretary of the Air Force Sheila Widnall stated, "Certainly, 
part of the Air Force mission is control of space, our ability to deny the use of space if necessary." 
Filho, supra note 51, at 359; General Joseph W. Ashy, former Commander-in-Chief of 
USSPACECOM, declared in 1996; "We are going to fight in space. Some people don't want to 
hear this, and it isn't in vogue. . . but — absolutely — we are going to fight in space." Id. 

87. DoD Directive 3100.10, supra note 84, at para. 4.1. 

88. Prohibited military activities in outer space that are specified in multilateral agreements 
include the following: 

(1) placing nuclear weapons in earth orbit, on celestial bodies, or anywhere else in outer 
space (Article IV, paragraph 1, Outer Space Treaty); 

(2) placing weapons of mass destruction in earth orbit, on celestial bodies, or anywhere in 
outer space (Article IV, paragraph 1, Outer Space Treaty); 

(3) establishing a military base or installation on the moon or other celestial bodies (Article 
IV, paragraph 2, Outer Space Treaty); 

(4) testing of any weapons on the moon or other celestial bodies (Article IV, paragraph 2, 
Outer Space Treaty); 

(5) conducting military maneuvers on the moon or other celestial bodies (Article IV, 
paragraph 2, Outer Space Treaty); 

(6) carrying out nuclear weapons explosions in outer space (Article 1.1(a), Limited Test Ban 

Treaty); 

(7) military or hostile use of environmental modification techniques that could produce a 
widespread adverse effect in either the earth's atmosphere or outer space (Articles I and 
II, Environmental Modification Convention). 

89. Carl Rochelle, Coming Soon: Global Navigation for Consumers, March 29, 1996, 
www.cgi.cnn.com/US/9603/global_satellite/index.html. 

90. White House Fact Sheet, U.S. Global Positioning System Policy, March 29, 1996, 
http://gauss.gge.unb.ca/poHcy/Fact_Sheet. 

91. Id. 

92. The Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under 
Water ("The Test Ban Treaty"), signed in Moscow August 5, 1963, 14U.S.T. 1313, 480 U.N.T.S. 
43, T.I.A.S. 5433 (entered into force October 10, 1963). 

93. 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205, signed in Washington, London, and 
Moscow on January 27, 1967. Its full title is actually much longer: "The Treaty on Principles 



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Douglas S. Anderson and Christopher R. Dooley 



Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon 
and Other Celestial Bodies." This treaty was a byproduct of the Legal Subcommittee of 
COPUOS and was largely based on the Declaration of Legal Principles governing the Activities of 
States in the Exploration and Use of Outer Space, which had been adopted in 1963 by General 
Assembly Resolution 1962. 

94. See Andem, supra note 80, at 339; see also MENON, supra note 65, at 43; Peter Jankowitsch, 
Legal Aspects of Military Space Activities, SPACE LAW DEVELOPMENT AND SCOPE 143, 146 (1992). 

95. UN General Assembly Resolution 1884 (XVII) was approved by acclamation on October 
13, 1963. See MENON, supra note 65, at 40. It was one of the earliest efforts to provide 
international legal guidance which related to the issue of interference with space systems. The 
Declaration was a UN effort to restrict a future arms race in space, even though the resolution had 
no binding legal effect. It set forth the principles of co-operation and mutual assistance, calling for 
nations to conduct their activities in outer space with due regard for the interests of other nations, it 
then stated the following about interference with space systems: 

If a State has reason to believe that an outer space activity or experiment planned by it or its 
nationals would cause potentially harmful interference with activities of other States in the 
peaceful exploration and use of outer space, it shall undertake appropriate international 
consultations before proceeding with any such activity or experiment. A State which has 
reason to believe that an outer space activity or experiment planned by another State would 
cause potentially harmful interference with activities in the peaceful exploration and use of 
outer space may request consultation concerning the activity or experiment. 

While not prohibiting "harmful interference," the 1963 Declaration required prior 
consultations before a State could lawfully engage in that activity. The language of the Declaration, 
however, only protected activities from interference that were consistent with "the peaceful 
exploration and use of outer space." While clearly such general language could be seen as a 
limitation on some information operations, it would not preclude all information operations, 
especially those in response to an aggressive, hostile act of another State that was clearly outside the 
bounds of "peaceful exploration and use of outer space." Information operations in self-defense, 
for example, would not contravene the 1963 Declaration of Principles. 

96. Gyula Gal, The Peaceful Uses of Outer Space - After the Space Treaty, PROCEEDINGS OF THE 
Tenth Colloquium on the Law of Outer Space 129 (1967); see also Bruce A. 
Hurwitz, The Legality of Space Militarization 137 (1986); Mark G. Markoff, The 

fudicial Meaning of the Term "Peaceful" in the 1967 Space Treaty, PROCEEDINGS OF THE ELEVENTH 

Colloquium on the Law of Outer Space 34 (1968). 

97. HURWITZ, supra note 96, at 138. 

98. Article 89, 1982 United Nations Convention on the Law of the Sea, U.N. Doc. A/CONF. 
62/122 (1982), 21 I.L.M. 126-354 (1982). 

99. This does not mean to imply that an assertion of sovereignty can only be done by means of 
an expressed statement. Certainly a nation can take actions which clearly express an intention to 
assert ownership over another nation's sovereign territory. However, the situation at issue here is a 
temporary interference with another nation's sovereign object. Actions that interfere with an 
object only temporarily are not likely to be construed as an assertion of sovereignty. 

100. John C. Kunich, Planetary Defense: The Legality of Global Survival, 41 AIR FORCE LAW 
REVIEW 1 19, 129 (1997), citing W. Thomas Mallison, The Laws of War and the Juridical Control of 
Weapons of Mass Destruction in General and Limited Wars, 36 GEORGE WASHINGTON LAW 
REVIEW 308 (1967). 

101. See Robert L. Bridge, International Law and Military Activities in Outer Space, 13 AKRON 
LAW REVIEW 649, 656 (1980) (referencing the Senate Foreign Relations Committee hearings on 
the Outer Space Treaty and the testimony of United Nations Ambassador Goldberg in response to 



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Information Operations in the Space Law Arena 



a question by Senator Carlson that a weapon of mass destruction "is a weapon of comparable ability 
of annihilation to a nuclear weapon, bacteriological ... it does not relate to a conventional 
weapon."). 

102. See Report of the Secretary-General, Developments in the field of information and 
telecommunications in the context of international security, U.N.G.A. 54/213 (Aug. 10, 1999). 
In response to an invitation to inform the Secretary-General of its views and assessments, the 
Russian Federation stated that "the use of information weapons against vital structures is 
comparable to the consequences of the use of weapons of mass destruction." Russia is also seeking 
support for a UN resolution "calling for new international guidelines and the banning of 
particularly dangerous information weapons. In comments submitted to the UN Secretary 
General published last month, Russia warned that information operations 'might lead to an 
escalation of the arms race.'" Bradley Graham, Military Grappling With Guidelines For Cyber Warfare, 
WASHINGTON POST, Nov. 8, 1999, at A10. 

103. There is no official US government policy as to whether an information operation is a 
weapon of mass destruction. Anders Eriksson, a senior analyst with the Defence Research 
Establishment, Stockholm, Sweden, argues that information operations are neither weapons of 
mass destruction, nor disruption, but rather of "precision disruption." See Eriksson, supra note 6, 
at 1. 

104. See Parkerson supra note 54 at 81. Within academic circles, there have been two primary 
views on whether the peaceful purposes language should have application at all to activities in outer 
space since the express reference to peaceful purposes is limited to "the moon and other celestial 
bodies." Those who advocate the broader interpretation look to other pertinent clauses in the 
preamble of the Outer Space Treaty. Advocates of a narrow interpretation note that when the 
treaty drafters wanted a provision to apply to outer space in other articles, they specifically used the 
words "outer space." Thus, the absence of the term "outer space" in the second part of Article IV, 
dealing with "peaceful purposes," is even more telling. See Morgan, supra note 19, at 300. 

105. During the drafting of the Outer Space Treaty, delegations from India, Iran, Austria, 
Japan, Brazil, and Mexico tried to include language that would completely demilitarize outer 
space, but their proposals were rejected by both the Soviet Union and the US. Kunich, supra note 
100, at 137; Parkerson, supra note 54, at 82. 

106. See Morgan, supra note 19, at 240—241 . The US view has been that use of outer space for 
self-defense constitutes a "peaceful purpose." Id. at n. 366. In addition, use of communication, 
navigation, remote sensing, and reconnaissance satellites have also become an accepted practice 
considered to be for "peaceful purposes." Id. at 308, 317. 

107. See Douglas S. Anderson, A Military Look into Space: The Ultimate High Ground, ARMY 
LAWYER 19, 28 (1995); see also Morgan, supra note 19, at 299. 

108. An excellent example is that cited by Parkerson supra note 54, at n. 99, referring to 
Professor Bin Cheng, who in stating that the treaty's language provides that "Antarctica shall be 
used for peaceful purposes only," fails to mention the additional clarifying language not included in 
the Outer Space Treaty. Antarctic Treaty, done at Washington, December 1,1959, 12 U.S.T. 794, 
402U.N.T.S. 71, T.I.A.S. 4780 (entered into force on June 23, 1961). Similarly, the UN Convention 
on the Law of the Sea also provides that the high seas shall be reserved for "peaceful purposes," yet 
there has been no attempt to prohibit military ships from the high seas. The practice of nation States 
demonstrates that the non-aggressive use of the high seas is consistent with a peaceful purpose. See 
Parkerson, supra note 54, at 84. 

109. Parkerson, supra note 54. 

110. Statement by the President of the United States on International Cooperation in Space. 
reprinted in Senate Committee on Aeronautics and Space Sciences; sec also Kunich, supra note 100, 
at 136-137. 

111. 42 US Code sec. 2451(a). 



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Douglas S. Anderson and Christopher R, Dooley 



112. SeeKunich, supra note 100, at 131; Anderson, supra note 107, at 27; Parkerson, supra note 
54, at 82; Bridge, supra note 101, at 658. 

113. See Bridge, supra note 101, at 658. 

114. A more extreme view is held by Professor Mark G. Markoff, Professor of International 
Law, University of Fribourg, Switzerland, who believes that the Outer Space Treaty was intended 
to completely demilitarize space. According to Professor Markoff, all parties to the Outer Space 
Treaty have agreed, through Article I, not to engage in any space activity that is not in the common 
interest of all other nations. Since any military activity, even that for self-defense or other 
non-aggressive purposes, cannot be for the benefit of all nations, the Outer Space Treaty does not 
authorize any military activity in outer space. See Anderson, supra note 107, at 26; Parkerson, supra 
note 54, at 83. 

115. See Parkerson, supra note 54, at 82; Morgan, supra note 19, at 303. 

116. Rymn James Parsons, The Fight to Save the Planet: U.S. Armed Forces "Greenkeeping" and 
Enforcement of the Law Pertaining to Environmental Protection During Armed Conflict, 10 GEORGIA 

International Environmental Law Preview 441, 470 (1998). Historically, treaty 

obligations between belligerents were suspended during armed conflict between them. 2 

Oppenheim's International Law: A Treatise 302 (H. Lauterpacht ed., 7th ed. 1952). 

Currently, the compatibility of particular treaties during a state of armed conflict is assessed on a 
case-by-case basis. D. P. O'CONNELL, 1 INTERNATIONAL LAW 268 (2d ed. 1970); 
RESTATEMENT (THIRD), FOREIGN RELATIONS LAW OF THE UNITED STATES, sec. 336, 
Reporter's Notes, 221-22 (1986). 

117. Many might argue that copying, diverting, modifying, or otherwise tampering with data 
of another does constitute "harm" and would be a violation of international law. 

118. S.C. Res. 678 (Nov. 29 1990). 

119. S.C. Res 1264 (Sept. 15 1999). 

120. GOLDMAN, supra note 59, at 28. The organization had its beginnings in 1865 when 
co-operative regulations were initiated by the Geneva Telegraphic Convention in Paris. That first 
agreement was modified and extended, culminating in the ITU in 1932 as a result of the 
combining of similar conventions. See 1 MANUAL ON SPACE LAW 225, n. 1 (Nandasiri 
Jasentuliyana and Roy S.K. Lee eds., 1979). 

121. GOLDMAN, supra note 59, at 28. 

122. 1 Manual on Space Law, supra note 120, at 196. 

123. SPACE LAW DEVELOPMENT AND SCOPE 23 (Nandasiri Jasentuliyana ed., 1992). 

124. The US signed the Convention on December 22, 1992, and signed the 1994 amendments 
at Kyoto on October 14, 1994. For a discussion of the 1992 ITCand 1994 amendments, see Marian 
Nash (Leich), Contemporary Practice of the United States Relating to International Law, 91 AMERICAN 

Journal of International Law 93 (1997). 

125. Annex, para. 1003 of the 1992 ITC. This language is identical to that found in Annex 2, 
para. 2003 of the 1982 ITC. 

126. Eilene Galloway, International Institutions to Ensure Peaceful Uses of Outer Space, IX ANNALS 

of Air & Space Law 323 (1984). 

127. The US position, according to Michael W. Zehner, Air Force Deputy General Counsel 
(International Affairs), follows the more restrictive language of the ITC provision. Interview with 
Mr. Zehner (Dec. 20, 1999). 

128. Supra note 116. An interesting comparison can be made to virtually identical 
non-interference language contained in the 1982 UN Convention on the Law of the Sea (LOS 
Convention). In Article 19(2)(k), the LOS Convention prohibits "any act aimed at interfering 
with any systems of communication" during innocent passage in a foreign territorial sea. No one 
has argued that similar non-interference provisions contained in the LOS Convention apply 
during periods of lawful military activity. 



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129. GOLDMAN, supra note 59, at 50; see also Morgan, supra note 19, at 253. 

130. GOLDMAN, supra note 59, at 53. 

131. Id. at 50. 

132. Id. at 53. 

133. Agreement Reached on Intelsat, SPACEDAILY, Feb. 13, 1998, at2; see also Morgan, supranote 
19, at 293-94. 

134. The former Defense Communications Agency (DCA), now called the Defense 
Information Systems Agency (DISA), concluded that although there is no restriction on the 
military use of "specialized" services, all currently offered INTELSAT services are considered 
"public telecommunications services" available to military forces for military purposes. Morgan. 
supra note 19, at 293-94. 

135. Letter of Warran Y. Zeger, Vice President, Law Department, COMSAT World Systems 
Division (Feb. 3, 1989) (on file with authors). COMSAT is a public and private satellite 
corporation created by Congress in 1962 by the Communications Satellite Act, 47 US Code 701 et 
seq, and is the US representative to both INTELSAT and INMARSAT. See GOLDMAN, supra 
note 59, at 50. It is regulated by the Federal Communications Commission (FCC) and receives its 
instructions on how to vote on INTELSAT and INMARSAT issues from the US government. See 
Morgan, supra note 19, at n. 291. 

136. Agreement Relating to the International Telecommunications Satellite Organization, 23 
U.S.T. 3813, T.I.A.S. No. 7532 (1973). 

137. For example, Article III sets forth the organization's prime objective to be that "the space 
segment required for international public telecommunications services ... be available on a 
non-discriminatory basis to all areas of the world." Thus, interference through information 
operations with multidirectional channels such as telex, telephony, and data transmission would 
affect the availability on a non-discriminatory basis of international public telecommunications. 
See, Martin A. Rothblatt, Satellite Communication and Spectrum Allocation, 76 AMERICAN 

Journal of International Law 56, 64 (1982). 

138. Supra note 116. 

139. Space Law Development and Scope, supra note 123, at 102; see also 1 Manual on 
SPACE LAW, supra note 120, at 441. 

140. Unlike INTELSAT, which is limited in its membership to ITU members, INMARSAT is 
open to all nations. SPACE LAW DEVELOPMENT AND SCOPE, supra note 123, at 102. 

141. Id. at 102; see also GOLDMAN, supra note 59, at 58. 

142. Convention on the International Maritime Satellite Organization, opened for signature Sep. 
3, 1976, 15 I.L.M.1051 (1976) (entered into force July 1976). 

143. Guidelines for INMARSAT Convention, Article 3(3) (March 29, 1988), (filed with 
INMARSAT following consultation with Argentina, Belgium, Brazil, France, India, Italy, Japan, 
Netherlands, Oman, Singapore, UK, and USA), reprinted in Memorandum of Law on The 
"Peaceful Purposes" Requirement and Inmarsat use by Armed Forces, Wolf D. Von Noorden, 
Special Counsel to INMARSAT, June 29, 1994, cited in Walter Gary Sharp, Sr., Revoking an 
Aggressor's License to Kill Military Forces Serving the United Nations: Making Deterrence Personal, " 22 
MARYLAND JOURNAL OF INTERNATIONAL LAW AND TRADE 1, n. 221 (1998). 

144. Neal T. Kilminster, COMSAT General Counsel opinion (April 15, 1999) (on file with 
authors). 

145. Id. 

146. Id. 

147. Id. at 2. 

148. Article XV (2), Strategic Arms Limitation Talks (SALT II), Treaty Between the United 
States of America and the Union of Soviet Socialist Republics on the Limitation of Strategic 
Offensive Arms, June 18, 1979; Article IX(2), Treaty Between the United States of America and 



308 



Douglas S. Anderson and Christopher R. Dooley 



the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive 
Arms (START) , July 3 1 , 1 99 1 . 

149. Roger D. Scott, Legal Aspects of Information Warfare: Military Disruption of 
Telecommunications, 45 NAVAL LAW REVIEW 57, 59 (1998). 

150. Draft Joint Services Law of War Manual, para. 2.001 (unpublished 2d draft) [hereinafter 
LOW Manual]. Access to this draft is limited since it is still pending coordination and review. 

151. Military necessity is codified in Article 23, para, (g) of the Annex to Hague IV, which 
forbids a belligerent "to destroy or seize the enemy's property, unless such destruction or seizure be 
imperatively demanded by the necessities of war." For an excellent discussion of this principle, 
including a historical perspective, see LOW Manual, supra note 150, at Chapter II. 

152. DoD/GC Paper, supra note 62. 

153. International and Operations Law Division, Office of The Judge Advocate General, 
Department of the Air Force, LAW OF ARMED CONFLICT TRAINING GUIDE (April 1993). 

154. DoD/GC Paper, supra note 62. 

155. Law of war treaties contain the caveat that the right of a party to a conflict is not unlimited 
in its selection and use of means or methods of war. The principle of avoiding the employment of 
arms, projectiles, or material of a nature to cause superfluous injury, also referred to as unnecessary 
suffering, is codified in Article 23 of the Annex to Hague IV. LOW Manual, supra note 150, at para. 
2.003. 

156. INTERNATIONAL LAW - THE CONDUCT OF ARMED CONFLICT AND AlR 
OPERATIONS, (AFP 110-31) 1-6, cited in Ariane DeSaussure, The Role of the Law of Armed Conflict 
During the Persian Gulf War: An Overview, 37 AIR FORCE LAW REVIEW 46-47 (1994). 

157. DoD/GC Paper, supra note 62. 

158. The Judge Advocate General's School, Operational Law Handbook 5-5 (2000). 

159. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to 
the Protections of Victims of International Armed Conflicts (Protocol I), art. 48, 1125 
U.N.T.S. 

160. See DoD/GC Paper, supra note 62. See generally , Protocol I, supra note 159, art. 43. 

161. DoD/GC Paper, supra note 62. See generally, Geneva Convention Relative to the 
Treatment of Prisoners of War, art. 4(2) (b). 

162. DoD/GC Paper, supra note 62. 

163. AFP 110-31, supra note 156, para. 6-3a. 

164. DoD/GC Paper, supra at note 62. 

165. Id. at 6, 8. 

166. Primer on Legal Issues in Information Operations, supra note 27, at 19. 

167. DeSaussure, supra note 156, at 46—47. 

168. LOW Manual, supra note 150, at para. 2.005. 

169. DeSaussure, supra note 156, at 47. 

170. DoD/GC Paper, supra note 62. Of course, ruses and the use of the element of surprise are 
not illegal acts. See LOW Manual, supra note 150, at para. 2.006. 

171. Department of Defense, Doctrine for Joint Operations, JOINT PUB 3-0, (Feb. 1, 1995). 

172. See Scott, supra note 149, at 60. 

173. DoD/GC Paper, supra note 62. But see Roger D. Scott, Territorially Intrusive Intelligence 
Collection and International Law, 46 AIR FORCE LAW REVIEW 217 (1999); SHARP, supra note 6, at 
125-133. 

174. This is largely a recognition of the international law doctrine called "tu quoque, " in which 
"a nation has no standing to complain about a practice in which it itself engages." DoD/GC Paper, 
supra note 62. 

175. This assumes that Nation A and Nation B are parties to those formerly bilateral 
agreements. 



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Information Operations in the Space Law Arena 



176. None of these agreements has any specific provision that indicates whether the parties 
intended that they apply during international armed conflict. It also appears that their provisions on 
harmful interference are inconsistent with a state of hostilities. See DoD/GC Paper, supra note 62. 

177. Richard J. Erickson, Legitimate Use of Military Force against 
State-Sponsored International Terrorism 144-145 (1989). 

178. Id. at 144—146. The Caroline case is frequently cited as precedent in the customary 
international law of self-defense. A ship named the Caroline would periodically sail from the US to 
Canada to resupply the rebels there during Canada's 1837 revolt against the British. The British 
responded by entering the US, seizing the offending ship, and destroying it. The British claimed 
they acted in self-defense. Through correspondence with the British government on the incident. 
Secretary of State Daniel Webster set forth his understanding of the conditions necessary for 
self-defense. According to Webster, there "must be a necessity of self-defense, instant, 
overwhelming, leaving no choice of means and no moment for deliberation." Moreover, the act 
should involve "nothing unreasonable or excessive, since the act justified by the necessity of 
self-defense must be limited by that necessity and kept clearly within it." Webster's criteria of 
"necessity" and "proportionality" continue to form the basis of a lawful claim of self-defense. 
OPPENHEIM'S INTERNATIONAL LAW 420 (Robert Jennings and Arthur Watts eds., 9 tn ed. 
1933); see also Richard G. Maxon, Nature's Eldest Law: A Survey of a Nation's Right to Act in 
Self-Defense, PARAMETERS, Autumn 1995, at 55, 56-57. 



310 



XV 



Fourth Dimensional Intelligence 

Thoughts on Espionage, Law, and Cyberspace 

David M. Crane* 

The enemy will be different. . . . No longer will it be the simple terrorist armed 
with an AK-47 or the Semtex bomb . . . the new threat will be groups who will bond 
in cyber space and attack using the new weapons of war: viruses, bugs, worms and 
logic bombs. * 



ftp* 

he front cover of a recent Armed Forces Journal has an American soldier on 
a rope bridge suspended over a chasm with the title "Ready for What?" 2 
This is a key question for national security policy makers regarding the mission 
of US Armed Forces as the world moves into the uncharted waters of the new 
millennium. 3 

Institutionally, the national security structure of the United States is facing 
many challenges. Configured to meet the Soviet threat, the Armed Forces, as 
well as the intelligence community, are realizing that changes must be made. 4 
The question posed above, however, is relevant regarding the issue of being 
ready for the next threat. What are the threats that face our national security and 
how should we be organized functionally to meet those challenges, particularly 
as they relate to the dimension of cyberspace? 

The geopolitical world of the 20 th Century, drawn along colonial and ideo- 
logical lines, is fading into the past. The threats faced by the United States today 



Fourth Dimensional Intelligence 



are not just standing industrial age armies, but international criminals, terrorists, 
and State and non-State actors using relatively inexpensive and easily attained 
technology to manufacture weapons of mass destruction. 5 

Throughout history, man has waged warfare, conducted commerce, and 
established an international political regime in a three-dimensional environ- 
ment. Mankind has faced and conquered the land, the sea, and the air above, 
moving freely about in these dimensions. Yet mankind has created another di- 
mension which will shape its evolution well past the start of this millennium. 
That dimension is cyberspace. It is in this dimension that both the legal and in- 
telligence communities, among others, will have to develop an ability to 
operate. 

Among the practices of States, intelligence gathering is accepted as a necessity 
in conducting foreign relations. 6 Throughout history, State actors have been 
collecting information on the intentions, capabilities, and policies of both 
friendly and rival States. 7 

In the information age, intelligence plays an increasingly important role. 8 In- 
formation is the new strategic high ground. For the past fifty years or so the intel- 
ligence community of the United States focused on the Soviet Union and its 
allies, mainly the Warsaw Pact countries. 9 The mission was clear and the com- 
munity organized itself accordingly to provide critical information to the Na- 
tional Command Authorities 10 on Soviet capabilities and intentions. 11 This 
organizational model, however, may no longer be valid. 12 

Due to the ever-increasing challenges in gathering that information against a 
hard target, the community began to rely more and more on its technical capa- 
bilities. Imagery intelligence and signals intelligence provided spectacular cover- 
age and monitoring of Soviet communications and critical strategic targets. 13 At 
times this was at the expense of the other intelligence collection methods such as 
human-source intelligence (HUMINT). 14 In the asymmetric world of the 21st 
Century, HUMINT and open source intelligence (OSINT) will play a key 
role. 15 This role will not change in the dimension of cyberspace and computer 
network attack or defense. 16 Additionally, the computer will become a useful 
tool for an intelligence operative or analyst to use. 17 

Throughout our history, however, the role of intelligence in defending our 
nation has been misunderstood. 18 The methodologies of intelligence gathering 
can, to some citizens, appear to run counter to the basic principles of a free and 
open society. 19 Though Americans are fascinated by the capabilities of the com- 
munity, they have an unrealistic romantic view of the often dangerous and dirty 
world of intelligence gathering. 20 



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David M. Crane 



The Role of Intelligence in the United States 

Until the Second World War, US intelligence played a minor role in protect- 
ing our national security. Only during time of war did an intelligence service 
emerge to support the commander in the field. After the emergency, the intelli- 
gence capabilities of the US diminished or were disbanded. 21 

Counterintelligence played even less of a role and was largely nonexistent 
prior to the First World War. 22 Domestically, the counterintelligence service 
became a profession in the 1920s with the advent of the Bureau of Investigation 
in the Department of Justice (later the Federal Bureau of Investigation) and the 
creation of various service counterintelligence organizations. 23 

The intelligence community has also had an awkward relationship with the 
Congress. Until the mid-1970s, Congress deferred to the executive branch on 
issues of national security as a constitutional prerogative of the President acting as 
Commander-in-Chief. 24 In the early 1970s, allegations of wrongdoing by the 
intelligence community caused a public outcry and resulted in long-term con- 
gressional and presidential scrutiny. 25 The result was the creation of the con- 
gressional intelligence oversight committees and presidential guidelines on the 
proper conduct of intelligence operations, particularly as they related to US per- 
sons. 26 Those policies and regulations are still in place and govern the intelli- 
gence activities discussed later in this chapter. 

Thus, the US intelligence community truly was a creature of the Cold War 
designed to operate in three dimensions. 27 It was created and designed to counter 
Soviet hegemony, largely an industrial age threat. With the dissolution of the 
Soviet Union, and the advent of the information age, the intelligence commu- 
nity, a large and cumbersome bureaucracy, has to evolve into a quick reacting, 
forward thinking, and agile grouping of agencies ready to respond to various 
asymmetric threats, including computer network attack. 28 

The Challenges Ahead (or US Intelligence and Cyberspace 

The need for information by policy makers and warfighters will only increase. 
The National Command Authorities and the geographic Commanders-in-Chiefs 
will demand more real time intelligence for strategic and tactical planning. 29 
The present reactive stance of the community will have difficulty providing 
current intelligence on the broad and diverse spectrum of transnational issues 
and threats. This reactive stance is exacerbated by two problems. The first is the 
organization of the community itself, the second, the management of the huge 
amount of data generated by the various intelligence agencies. 30 Overlaid on 

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Fourth Dimensional Intelligence 



these two problem areas is this fourth dimension of cyberspace, the battleground 
of the future. 31 

Though the current legal paradigm of international and domestic law regard- 
ing armed conflict was developed over the past few centuries, this evolved set of 
legal principles allows, for the time being, a practitioner sufficient leeway upon 
which to operate in the fourth dimension of cyberspace. 32 

In short, the major hurdles regarding espionage and computer network attack 
are not legal, but organizational and technical. Some of the legal challenges re- 
volve around intelligence oversight and the collection of intelligence on US 
persons, as well as the law of war. The intrusive nature of computers and the 
Internet and their use as tools of espionage, and even warfare, cause legal scholars 
and practitioners in national security some concern, not from the lack of prece- 
dent, but of policy. 

The Current Domestic Legal Framework 

The current legal framework stems from statutory and regulatory guidance of 
the late 1970s, due to the improprieties by the US intelligence community in 
collecting information on US persons. 33 Centered on the National Security Act 
of 1947 and Executive Order 12333, intelligence organizations in the United 
States have been directed to follow certain prescribed procedures regarding the 
conduct of intelligence activities. 34 

The National Security Act of 1947, particularly Title V, gives authority 
for various departments and intelligence agencies to conduct intelligence 
gathering, laying out parameters as to what these organizations can or cannot 
not do in the process. 35 One of the key statutory conditions is to keep the Con- 
gress currently and fully informed on all intelligence activities being con- 
ducted. 36 

Executive Order 12333, signed by President Reagan, lays out the various 
missions of the intelligence community and gives specific guidance on how to 
conduct intelligence activities. 37 Each department promulgates and expands on 
this guidance through departmental regulations. 38 Additionally, there are inter- 
nal policy directives that further refine the methods by which the intelligence 
community can collect this intelligence. 39 

These rules, coupled with international law, allow the intelligence agencies 
to operate properly in cyberspace. If given the proper mission and authority, 
intelligence organizations can collect information (conduct espionage) in this 
fourth dimension. These operations can be done in peacetime, pre-hostilities 
(intelligence preparation of the battlefield), and during armed conflict. 

314 



David M. Crane 



The challenge is developing policy that allows the community to conduct es- 
pionage in cyberspace. Proper guidance is essential to ensure that sources and 
methods are not compromised, the operational environment is secure, proper 
counterintelligence concerns are addressed and monitored, and there is proper 
oversight to ensure that the civil rights of US persons are not violated. 

Some Policy Considerations 

Operationally, cyberspace will pose the same challenges that a commander 
would face in a three-dimensional battle. Concepts of speed, mass, maneuver, 
surprise, taking the high ground, command and control, and forward support, 
among others, all apply in cyberspace. The Commander will need to be able to 
operate with as much familiarity and precision in this realm as he would on land, 
sea, or air — integrating all four dimensions seamlessly in achieving full spectrum 
dominance. He will also have to keep in mind, the four operational concepts es- 
poused in the concept for future joint operations: dominant maneuver, preci- 
sion engagement, full-dimensional protection, and focused logistics. 40 

Underlying all of the operational concepts listed above is the premise that new 
and emerging technologies will give joint US forces information superiority in 
any given mission. Information superiority is no longer a theory, but rather opera- 
tional doctrine. Information superiority can be likened to the new high ground. A 
force that gains information dominance in the battlespace can shape it by making it 
not only more lethal for the adversary, but survivable for friendly forces. 

A cornerstone in achieving this high ground is proper intelligence prepara- 
tion of the battlespace itself using various methodologies, systems, and tech- 
niques to allow the commander to be dominant in his maneuver, precisely 
engaging the enemy in whatever dimension, supported by agile, innovative, fo- 
cused personnel and organizations. Joint Publication 3-13, Joint Doctrine for 
Information Operations, describes intelligence preparation of the battlespace as 
"... the continuous process used to develop a detailed knowledge of the adver- 
sary system use of information and information systems." 41 

The intelligence community's challenge is to determine how far it can go to 
prepare that battlespace. Policy and operational concerns begin to surface as the 
transition takes place from a third dimensional conflict to operations in the 
fourth dimension of cyberspace. In attempting to understand the information 
environment, the operator will need knowledge of, inter alia, the adversary's in- 
formation systems; political, economic, social, and cultural makeup; decision 
making process; geographic strengths and weaknesses; and biographical/psy- 
chological profiles. 42 

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Fourth Dimensional Intelligence 



Methods to achieve proper intelligence preparation of the battlespace could 
be intrusive, thereby butting up against privacy and oversight restrictions that 
could hamper and even impede the gathering of this intelligence. Intelligence 
oversight and review organizations will have to be aware of, and add within their 
training and review methodologies, information operations, to include princi- 
ples of computer network attack and defense. 

The potential for the inadvertent violation of civil rights of US persons is 
great due to the intrusive capabilities of these tools. 43 It must be noted, however, 
that these intrusive techniques have existed for many years and the oversight 
rules are generally sufficient to ensure proper operational use. The term "least 
intrusive means" is a standard in intelligence collection, similar to the propor- 
tionality concepts found in the law of armed conflict. 44 

As intelligence organizations plan and execute operations to prepare the 
battlespace, policy makers will have to determine how far the intelligence 
operator can go to prepare for any situation along the conflict spectrum. 
Misinterpretation by a potential adversary that this preparation could be indeed 
an attack requires careful planning and oversight to ensure that there is no inad- 
vertent response by an aggrieved party on our information or economic 
infrastructure. 

Concluding Thoughts . . . 

It is not constructive to change for change's sake. Faced with new issues, the 
law moves slowly, but in most instances the lapse of time allows for the contro- 
versy to ripen and be properly resolved. 43 In the past this could take years. In this 
day and age, where a "web-year" of three months governs the business of the in- 
formation market, the law could quickly become irrelevant and certainly a hin- 
drance to both commerce and possibly our national security. 

Practitioners must balance the need for a careful development of the law in 
the area of information operations with the fast-paced reality of the information 
age. The intelligence community itself, like the legal profession, also must de- 
velop a strategic plan akin to the vision of the Department of Defense in order to 
move steadily forward in improving organizational structures and developing 
more collaborative and streamlined information systems to support operations 
in cyberspace. 

Where all this will end up is anyone's guess. As in all things new, over- 
reactive quick fixes will in the long run cause more confusion and potential harm 
to this nation's security. Additionally, treating information operations as a "dif- 
ferent" operational tool for a commander in the field is a mistake. The doctrinal 

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David M. Crane 



and policy decisions by the Joint Staff to fully integrate information operations in 
operational planning are certainly steps in the right direction. 

Operators and the legal community must continue to work for careful change 
domestically and provide leadership internationally to create appropriate rules in 
which future operations in cyberspace may be conducted within proper legal 
norms. 

As former Secretary of Defense William Cohen declared: 

If you can shut down our financial system, if you could shut down our 
transportation system, if you could cause the collapse of our energy production 
and distribution system just by typing on a computer and causing those links to 
this globalization to break down, then you're able to wage successful warfare and 
we have to be able to defend against that. 46 

Notes 

* The views expressed in this paper are solely the author's and do not reflect the position of the 
Inspector General or the Department of Defense. 

1. JAMES ADAMS, THE NEXT WORLD WAR 15 (1998). 

2. David L. Grange, Ready for What?, ARMED FORCES JOURNAL, Dec. 1999, at 42. The 
article itself focuses mainly on the readiness reporting system and how it reflects readiness to meet the 
challenging new missions facing US Armed Forces. For an excellent discussion of future warfare 
and the challenges facing the US Army, see ROBERT H. ECCLES, FUTURE WARFARE (1999). 

3. See generally, The United States Commission on National Security/2 1st Century, New 
World Coming: American Security in the 21st Century (The Phase I Report on the Emerging 
Global Security Environment for the First Quarter of the 21st Century), Sept. 15, 1999. At page 7 
the Commission states that the emerging security environment in the next quarter century will 
require different military and other national capabilities. 

4. The Director of Central Intelligence, George Tenet, states in his (U)Strategic Intent for the 
Intelligence Community (S/NF) that "success in the 21st Century will require closer cooperation 
and more efficient use of our capabilities" (at 1). 

5. There is an interesting development in the way nations/peoples prepare to fight 
technologically. The TofHers in their book WAR AND ANTI-WAR, place these various 
methodologies in waves. Their premise is that throughout history man wages war the way he works. 
Consisting of three waves, the first wave centered around agriculture, the second wave on the 
industrial revolution, and the third on knowledge and information. Each had a profound affect on the 
way war was waged. See generally, ALVIN AND HEIDI TOFFLER, WAR AND ANTI-WAR (1993). 
Today all three waves exist simultaneously, a phenomenon generally not encountered in the past. For 
instance, in Somalia, information warriors have faced and have been challenged by agricultural 
workers fighting with spear and shield. This imbalance caused these highly technical soldiers to fight 
the Somalis on their terms, as technology/information operations proved ineffective against these first 
wave warriors. See also ROBERT W. CHANDLER, NEW FACE OF WAR (1998), which focuses on 
the impact of weapons of mass destruction and America's military strategy. 

6. Espionage falls within the parameters of the inherent right of self- defense and is also lawful 
under the law of armed conflict. See NATIONAL SECURITY LAW 443 (John N. Moore et al., eds. 



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Fourth Dimensional Intelligence 



1990); Hague Convention IV Respecting the Law and Customs of War on Land, Oct. 18, 1907, 
Annex (Regulations), arts. 24, 29-31, 36 Stat. 2295, 1 Bevans 643. 

7. JOHN P. FINNEGAN, THE MILITARY INTELLIGENCE STORY, at V (1994). See generally, 

George O'Toole, Honorable Treachery, (1991). In Power Shift (1991), Alvin 

Toffler declares at page 289 that "Spies have been busily at work at least since the Egyptian Book of 
the Dead termed espionage a soul-endangering sin." 

8. WAR AND ANTI-WAR, supra note 5, at 154. See also William Clinton, A NATIONAL 

Security Strategy for a New Century 24 (1998) and Combating Proliferation 

OF WEAPONS OF MASS DESTRUCTION, Report from the Commission to Assess the 
Organization of the Federal Government to Combat the Proliferation of Weapons of Mass 
Destruction (1999), at 66. 

9. See THE MILITARY INTELLIGENCE STORY, supra note 8, at 19. See also HONORABLE 
TREACHERY supra note 7, at 492-493; DAVID MURPHY ET AL., BATTLEGROUND BERLIN, at ix, 
398 (1997). 

10. The National Command Authorities (NCA) consist of the President and the Secretary of 
Defense collectively. See generally, 10 US Code § 162(b). The NCA is different than the National 
Security Council (NSC), created by the 1947 National Security Act, 50 US Code § 40. The NSC 
membership consists of the President, Vice President, Secretary of Defense, and the Secretary of State. 
Statutory advisors are the Chairman of the Joint Chiefs of Staff and the Director of Central Intelligence. 

11. The intelligence community is composed of 13 agencies, including those in the 
Departments of Defense, Justice, Treasury, Energy, and State, as well as the Central Intelligence 
Agency (CIA). See OFFICE OF PUBLIC AFFAIRS, CIA, A CONSUMER'S GUIDE TO 
INTELLIGENCE, at vii and 28 (1999). The majority of assets and organizations are in the 
Department of Defense. These include the Defense Intelligence Agency, the National Imagery 
and Mapping Agency, the National Reconnaissance Office, and the National Security Agency, 
among others. The missions of the various agencies and intelligence components within the US 
intelligence community can generally be found in E.O. 12333, US Intelligence Activities. 
(December 4, 1981, 46 Federal Register 59941). 

12. In WAR AND ANTI-WAR, supra note 5, at 154 the Tofflers state: 

Among all the "national security" institutions, none have a deeper need for restructure and 
reconceptualization than those devoted to foreign intelligence. Intelligence, as we've seen. 
is an essential component of any military knowledge strategy. But as the Third Wave 
war-form takes shape, either intelligence itself assumes a Third Wave form, meaning 
it reflects the new role of information, communication, and knowledge in society, or it 
becomes costly, irrelevant, or dangerously misleading. 

See also THE NEXT WORLD WAR, supra note 1, at 258. Adams writes: 

As with so many things, the end of the Cold War and the advent of the Information Age 
caused a seismic shift in the world of espionage. Spy agencies needed a reason to be; 
although the need for intelligence had not lessened, the fact that most required knowledge 
was rapidly becoming available on the Internet meant that cloak and dagger was beginning 
to take second place to the drudge of reading and analyzing mountains of online reports. 

13. See generally, VENONA: SOVIET ESPIONAGE AND THE AMERICAN RESPONSE 
1939-1957 (Robert Benson and Michael Warner eds., 1996); THE MILITARY INTELLIGENCE 
STORY, supra note 7; HONORJVBLE TREACHERY, supra note 7; SHERRY SONTAG AND 

Christopher Drew, Blind Man's Bluff (1998). 

14. There are five basic intelligence sources, or collection disciplines: Signals Intelligence 
(SIGINT) includes information derived from intercepted communications, radar, and telemetry; 
Human-source Intelligence (HUMINT) derived information from both clandestine and overt 

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David M. Crane 



collections techniques; Imagery Intelligence (IMINT) which provides information from overhead 
and ground imagery; and Measurement and Signatures Intelligence (MASINT) is that information 
that comes from technical means other than imagery or SIGINT. A CONSUMER'S GUIDE TO 

Intelligence, supra note 11, at 2. 

15. The Tofflers declare that "The Shift to a Third Wave intelligence system, paradoxically, 
means a stronger emphasis on human spies. ..." WAR AND ANTI-WAR, supra note 5, at 158. 
They go on to say that "the Third Wave explosion of information and communication means that 
more and more of what decision makers need to know can be found in 'open' sources." Id. at 160. 
OSINT is information that is publicly available, as well as other unclassified information that has 
limited public distribution or access. Open source information also includes any information that 
may be used in an unclassified context without compromising national security or intelligence 
sources or methods. 

16. Walter Gary Sharp, Sr., Cyberspace and the Use of Force 124-125 (1999). 

17. NATIONAL SECURITY LAW, supra note 6, at 438-42; Chairman of the Joint Chiefs of Staff, 
Joint Publication 3-13, Joint Doctrine for Information Operations, at 1-9 & 1-10 (1998) 
[hereinafter Joint Pub 3-13]. 

18. George Constantinides, Intelligence and Espionage 11 (1983). 

19. Henry L. Stimson and McGeorge Bundy, On Active Service in Peace and 

WAR 188 (1948). As Secretary of State, Stimson shut down the State Department's code breaking 
unit in 1929, remarking "... that gentlemen do not read other people's mail." See also 
HONORABLE TREACHERY, supra note 7, at 3. O'Toole asserts: "American gentleman have read 
other people's mail at every major turning of our national career. What is more, American 
gentlemen have proved to be very good at it." Id. at 3. President Harry Truman is attributed to 
have said during the signing of the National Security Act of 1947 that "intelligence and a free 
society do not mix." 

20. Henry James captured the American attitude when he stated: 

American innocence contrasted with European subtlety and corruption. Americans are 
blunt, forthright, direct, ingenuous — all qualities acquired on the frontier and permanently 
incorporated in the American national character. Deviousness, secretiveness, indirection, 
and duplicity are, literally, foreign. 

HONORABLE TREACHERY, supra note 7, at 3. Robert Gates, a former Director of Central 
Intelligence, writes: 

Presidents expect that, for what they spend on intelligence, the product should be able to 
predict coups, upheavals, riots, intentions, military moves, and the like with accuracy. . . . 
Presidents and their national security teams usually are ill-informed about intelligence 
capabilities; therefore they often have unrealistic expectations of what intelligence can 
do for them, especially when they hear about the genuinely extraordinary capabilities of 
U.S. intelligence for collecting and processing information. 

Robert Gates, An Opportunity Unfulfilled: The Use and Perceptions of Intelligence at the White House, 

Washington Quarterly, Winter 1989, at 38-39. 

21. See generally, THE MILITARY INTELLIGENCE STORY, supra note 7; HONORABLE TREACHERY, 
supra note 7; CHRISTOPHER M. ANDREW, FOR THE PRESIDENT'S EYES ONLY (1995). 

22. Regarding the state of counterespionage in the US around the time of the First World War, 
Christopher Andrew states: 

No nation was less ready than the United States. Neither the Justice Department's Bureau of 
Investigation (the future FBI) nor the Treasury Department's Secret Service had much 
experience of counterespionage work. Each made matters worse by refusing to cooperate 
with the other. 



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Fourth Dimensional Intelligence 



For The President's Eyes Only, supra note 21 at 30. 

23. See generally, THE MILITARY INTELLIGENCE STORY, supra note 7; DAVID CRANE, 

Counterintelligence Coordination (1995). 

24. In 1966, Senator Daniel K. Inouye (Democrat, Hawaii), the first Chairman of the Senate 
Select Committee on Intelligence, declared: 

I recall when we came to classified programs, we would all look over at Richard Russell, 
the Chairman of the Armed Services Committee, and he would say, "I have discussed this 
matter with the appropriate officials and I have found everything is in order. ..." But no one 
ever told us what was in order. 

HONORABLE TREACHERY, supra note 7. 

25. See Preparing for the 21st Century, An Appraisal of U.S. Intelligence, Report of the 
Commission on the Roles and Capabilities of the United States Intelligence Community, March 
1, 1996, atA-14. 

26. These committees are: The Senate Select Committee on Intelligence and the House 
Permanent Select Committee on Intelligence. Both of these committees (generally known as the 
Intelligence Committees) were established in 1976. 

27. HONORABLE TREACHERY, supra note 7, at 427. It is interesting to note that President 
Truman initially gave the job of creating a centralized organization to the Secretary of State, James 
Byrnes, who promptly tabled the idea where it languished for over a year. See also, FOR THE 
PRESIDENT'S EYES ONLY, supra note 21, at 149. 

28. See generally, Joint Pub 3-13, supra note 17, at II— 1 1 . The Joint Staff pointedly declares that 
"offensive IO [information operations] require broad-based, dedicated intelligence support. 
Because intelligence support to offensive IO may require significant lead time and the effectiveness 
of many offensive capabilities is significantly improved by early employment, potential intelligence 
collection sources and access should be developed as early as possible." Computer network attack is 
defined in the same publication as "operations to disrupt, deny, degrade, or destroy information 
resident in computers and computer networks, or the computers and networks themselves. Also 
called CNA." Id. at glossary. 

29. The combatant commands are statutorily created. 10 US Code § 161(a). Currently, there 
are nine combatant commands, five with geographic responsibility, e.g., Southern Command 
(SOUTHCOM), and four with functional responsibilities, e.g., Space Command 
(SPACECOM). 10 US Code § 164 lists the powers of a combatant commander who exercises 
combatant command (COCOM). See Chairman of the Joint Chiefs of Staff, Joint Publication 0-2, 
Unified Action Armed Forces (1995). The combatant commands are commonly referred to as the 
"warfighters." For an excellent overall summation of the roles and responsibilities of the NSC, 
NCA, and the combatant commands, see THE ARMY JUDGE ADVOCATE GENERAL'S SCHOOL, 

Operational Law Handbook, Ch. 2, (2000). 

30. NIMA Infotech Retools U.S. Space Recon Ops, AVIATION WEEK & SPACE TECHNOLOGY, 
Aug. 7, 2000, at 62. 

3 1 .Joint Vision 201 states that information superiority is a key force multiplier and operational 
capability in future battlespace, providing full spectrum dominance to shape the strategic 
environment. See JOINT WARFIGHTER CENTER, CONCEPT FOR FUTURE JOINT 
OPERATIONS 35-36 (1997). 

32. A concern is the attempt to create new rules for new technologies and ideas, without a 
proper understanding or consideration for the basic principles of international law and the law of 
armed conflict. Practitioners in the field of operational law in the armed services understand that in 
general the current legal regime allows for the proper conduct of information operations. 

33. See Seymour M. Hersch, Huge CIA Operations Reported in US Against Antiwar Forces. NEW 
YORK TIMES, Dec. 22, 1974, at Al; The Evolution of the US Intelligence Community-An 

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David M. Crane 



Historical Overview, in Report of the Commission on the Roles and Capabilities of the United 
States Intelligence Community, at A- 14 (1996). 

34. E.O. No. 12333, supra note 11. In the introduction to E.O. 12333, President Reagan 
directs: 

Timely and accurate information about the activities, capabilities, plans, and intentions 
of foreign powers, organizations, and persons, and their agents is essential to the national 
security of the United States. All reasonable and lawful means must be used to ensure that 
the United States will receive the best intelligence available. 

35. 50 US Code 401 et seq. (cited as "National Security Act of 1947"). The preamble to the 
original act of July 26, 1947, declares: 

AN ACT to promote the national security by providing for a Secretary of Defense; for a 
National Military Establishment; for a Department of the Army, a Department of the Navy, 
and a Department of the Air Force; and for the coordination of the activities of the National 
Military Establishment with other departments and agencies of the Government concerned 
with the national security. 

36. 50 US Code §501. 

37. Sect. 1.12, E.O. 12333, supra note 11. 

38. The Department of Defense has published this guidance in DoD Directive 5240.1, DoD 
Intelligence Activities (Apr. 25, 1988); DoD Directive 5240. 1R, Procedures Governing the 
Activities of DoD Intelligence Components That Affect United States Persons (July 1, 1982). 

39. See generally, for example, Department of the Army Regulation 381-10, US Army 
Intelligence Activities (July 1, 1984), and Defense Intelligence Agency, Intelligence Law 
Handbook (Sept. 1995). 

40. Concept for Future Joint Operations, supra note 31, at Introduction. 

41. Joint Pub. 3-13, supra note 17, at 11-12. See also Chairman of the Joint Chiefs of Staff, Joint 
Publication 2-01 .3, Joint Tactics, Techniques, and Procedures for Joint Intelligence Preparation of 
the Battlespace (2000). 

42. Id. at 11-12-13. 

43. A US person is defined as: 

... a United States citizen, an alien known by the intelligence agency concerned to be a 
permanent resident alien, an unincorporated association substantially composed of United 
States citizens or permanent resident aliens, or a corporation incorporated in the United 
States, except for a corporation directed and controlled by a foreign government or 
governments. 

E.O. 12333, supra note 11, at para. 3.4. 

44. For the principle of proportionality, see generally, US Army Field Manual 27-10, THE LAW 
OF LAND WARFARE at para. 41 (1956). Generally, the test is that the loss of life and damage to 
property incidental to attacks must not be excessive in relation to the concrete and direct military 
advantage expected to be gained. OPERATIONAL LAW HANDBOOK, supra note 29, at 7-4. 
Compare with the rule of least intrusive means found in E.O. 12333, supra note 11, at pt. 2.4 
(implemented in DoD Directive 5240. 1-R, supra note 38, Procedure 1, Sect. A. 4, and Procedure 
2, Sect. D), which states that the collection of information by a DoD intelligence component must 
be accomplished by the least intrusive means or lawful investigative technique reasonably available. 

45. As Sophocles declared in Oedipus Rex,"Time eases all things." 

46. Speech to the Veterans of Foreign Wars and the Ladies Auxiliary, reported in FEDERAL 
COMPUTER WEEK, Aug. 28, 2000. 



321 





Computer Network Attacks by Terrorists: 
Some Legal Dimensions 



John F. Murphy" 



M: 



ost of the contributions to this "Blue Book" focus on the possibility of 
-computer network attacks by States as a methodology for so-called in- 
formation warfare and the kinds of responses that may be taken consistently with 
the constraints of international law. 1 In this chapter, however, the focus shifts 
from the use of force by States to criminal acts committed by private individuals 
not under the sponsorship or control of a State. With this shift of focus, the appli- 
cable legal regime becomes international criminal law rather than provisions of 
the UN Charter governing the use of force and the maintenance of international 
peace and security. 

To be sure, "international criminal law" is an area of considerable definitional 
ambiguity. Some eminent commentators have denied its very existence. 2 Other 
commentators, the majority, have defined international crimes as certain acts 
that constitute a crime against international law seeking only a tribunal with ju- 
risdiction to apply that law and punish the criminal. Piracy is the prototypical ex- 
ample they cite. In response, the sceptics view piracy as solely a municipal law 
crime, the only question of international law being the extent of a State's juris- 
diction to apply its criminal law to an accused foreigner acting outside the terri- 
torial jurisdiction of the prescribing State. 3 



Computer Network Attacks by Terrorists 



Even for those crimes arguably constituting crimes under international as well 
as municipal law, it is necessary — in the absence of an international criminal 
court — to employ national law enforcement officials and national courts for 
purposes of apprehending, prosecuting, and punishing offenders. Accordingly, 
another dimension of "international criminal law" involves international coop- 
eration in the enforcement of municipal criminal law. Although most efforts to- 
ward international cooperation in the enforcement of municipal criminal law 
have been on a bilateral or regional basis, the United Nations has played an in- 
creasingly important role in this area. 

Considerable definitional ambiguity also surrounds the terms "terrorism" and 
"international terrorism." Despite strenuous efforts to do so, neither the United 
Nations nor its specialized agencies have been able to agree on a definition of 
"international terrorism." 4 Rather, as we shall see later in this chapter, the 
United Nations has adopted a piecemeal approach to the problem through the 
adoption of separate conventions aimed at suppressing particular manifestations 
of terrorism. Although these treaty provisions are often loosely described as 
"antiterrorist," the acts that they cover are criminalized regardless of whether, in 
a particular case, they could be described as "terrorism." 

Even at the domestic level, as illustrated by the US experience, defining inter- 
national terrorism is a tricky proposition. Under US law there are a variety of 
definitions that serve a variety of purposes. 5 Most important, at least at the fed- 
eral level, there is no crime of "terrorism" per se. Rather, the Omnibus Diplo- 
matic Security and Antiterrorism Act of 1986 provides US criminal jurisdiction 
over the killing of, or an act of physical violence with intent to cause serious 
bodily injury to or that results in such injury to, a US national outside the United 
States. 6 Although the relevant chapter of the Act is entitled "Extra-territorial Ju- 
risdiction over Terrorist Acts Abroad against United States Nationals," there is 
no requirement that the killing or violent act include the traditional elements of a 
terrorist act. Instead, the legislation incorporates the elements of terrorism as a 
limitation on prosecutorial discretion: 

(e) LIMITATION ON PROSECUTION. No prosecution for any offense 
described in this Section shall be undertaken by the United States except on 
written certification of the Attorney General or the highest ranking subordinate 
of the Attorney General with responsibility for criminal prosecutions that, in the 
judgment of the certifying official, such offense was intended to coerce, 
intimidate, or retaliate against a government or a civilian population. 

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John F. Murphy 



The conference report on the act makes it clear that the certification of the 
Attorney General or his designate is final and not subject to judicial review. 7 The 
report also clarifies the meaning of the term "civilian population" by noting that 
it "includes a general population as well as other specific identifiable segments of 
society such as the membership of a religious faith or of a particular 
nationality. . . ." 8 It is not necessary that either the targeted government or the 
civilian population be that of the United States. 9 

As a general working definition for this chapter, I shall employ the definitions 
of terrorism utilized by the US Government for statistical and analytical purposes 
since 1983: 

• The term "terrorism" means premeditated, politically motivated violence 
perpetrated against noncombatant 10 targets by subnational groups or 
clandestine agents, usually intended to influence an audience. 

• The term "international terrorism" means terrorism involving citizens or 
territory of more than one country. 

• The term "terrorist group" means any group practicing, or that has 
significant subgroups that practice, international terrorism. 11 

International terrorism is not a new phenomenon, and it is a topic that has 
been subjected to substantial scholarly (and some not so scholarly) analysis. 
Accordingly, in preparing this chapter, I have asked myself what I would call 
the Monty Python question: does the prospect of computer network attacks 
by terrorists constitute something "completely different," 12 or does it amount 
only to a new technique of attack for terrorists raising no new issues of law 
and policy? The answer, it appears, is that the possibility of computer network 
attacks does raise some new issues, although many of the old conundrums still 
pertain. 

Efforts to combat international terrorism may take place at three different 
stages. The first, and ideal, stage is before a terrorist attack has occurred. Here the 
effort is to prevent a terrorist attack, either through the hardening of possible tar- 
gets of terrorist attack or through intelligence work that allows law enforcement 
officials to learn of a planned attack in advance and intercept it. 

The second stage involves responding to a terrorist attack while it is in prog- 
ress, bringing it to an end, minimizing the damage it causes, and preventing 
panic among the general population. As we shall see, computer network attacks 
may present special challenges at this stage. 

The third and last stage is where the perpetrators of the terrorist acts have suc- 
ceeded in their mission, and it is necessary to apprehend them, submit them to 
prosecution before a tribunal with jurisdiction and fair procedures, and, if they are 



325 



Computer Network Attacks by Terrorists 



found guilty, punish them. Here, too, computer network attacks may present spe- 
cial challenges. 

In the sections that follow, I address some of the possible problems of combatting 
international terrorism at these three stages raised by the prospect of computer net- 
work attacks by terrorists. The final section sets forth some concluding observations. 

Prevention 

The Threat of Computer Network Attacks 

Other chapters in this "Blue Book" discuss the nature of computer network 
attacks at great length and with substantial authority. No attempt is made to du- 
plicate these efforts. Rather, this contribution attempts to discuss the concept of 
computer network attacks as a type of international criminal activity that might 
be engaged in by terrorists. 

To this end it may be useful to distinguish, as Michael Schmitt has done in an- 
other context, 13 between computer network attacks and information opera- 
tions. As explained by Schmitt, "information operations" should be defined 
expansively to "encompass, among an array of other activities, virtually any 
nonconsensual actions intended to discover, alter, destroy, disrupt, or transfer 
data stored in a computer, manipulated by a computer, or transmitted through a 
computer network." 14 Moreover, information operations are subdivided into 
defensive and offensive information operations. Computer network attacks fall 
within the latter category and consist of "(o)perations to disrupt, deny, degrade, 
or destroy information resident in computers and computer networks, or the 
computers and networks themselves." 15 

So defined, computer network attacks may take a variety of forms. They 
could be limited to the copying of sensitive data, which, depending on the cir- 
cumstances, might constitute espionage, or include techniques for altering or 
destroying data and programs. Other computer network attacks might result in 
physical destruction, such as, most ominously, the "meltdown" of a nuclear re- 
actor as a consequence of interference with its control system. Still other possible 
examples of computer network attacks have been suggested by Schmitt: 

1 . Trains are misrouted and crash after the computer systems controlling them are 
maliciously manipulated. 

2. An information blockade is mounted to limit the flow of electronic 
information into or out of a target State. 

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John F. Murphy 



3. Banking computer systems are broken into and their databases corrupted. 

4. An automated municipal traffic control system is compromised, thereby 
causing massive traffic jams and frustrating responses by emergency fire, medical, 
and law enforcement vehicles. 

5. Intrusion into the computer system controlling water distribution allows the 
intruder to rapidly open and close valves. This creates a hammer effect that 
eventually causes widespread pipe ruptures. 

6. A logic bomb set to activate upon initiation of mass casualty operations is 
imbedded in a municipal emergency response computer system. 16 

As he recognizes, some of these examples are realistic while others may 
stretch credulity. 

There is, moreover, the question of the technical capability of individual ter- 
rorists to engage in such computer network attacks without State support or 
sponsorship. In the past, the United States and other potential State targets of ter- 
rorist attack have benefitted from the relative technological incompetence of the 
terrorists. 17 For many years now, however, computer systems have been recog- 
nized as being especially vulnerable to terrorist attack. 18 And, in the words of one 
expert, "(t)he growing sophistication of high school students now entering col- 
lege will ensure an ever greater pool of persons capable [of engaging in computer 
network attacks]." 19 

Another useful distinction to keep in mind is between those computer net- 
work attacks that (1) may cause disruption of vital systems leading to widespread 
inconvenience, possibly to some degree of public alarm, but that do not directly 
threaten life, and (2) those that directly threaten or appear directly to threaten 
human life. 20 Most computer network attacks are more likely to fall within the 
first category than within the second. 21 

A major difficulty facing all efforts to prevent or combat computer network 
attacks is that they can be carried out remotely and often from great distances. 
Since anyone can access the Internet from anywhere in the world, law en- 
forcement officials may have no idea where the attacker is located. Under such 
circumstances, law enforcement officials will not know the motive behind the 
attack or the identity of the attackers. Even if they succeed in tracking the 
source of the attack to an Internet Service Provider (ISP), this ISP may be a 
mere conduit, or the attack may actually have originated with a subscriber to 
that service. 



327 



Computer Network Attacks by Terrorists 



Hardening of Targets 

Identification and hardening of critical targets of possible terrorist attack has 
long been recognized as a crucial step in preventing terrorist attack. 22 Virtually 
every major network — communications, electrical power, pipelines, and 
data — is vulnerable to terrorist attack. The vulnerability of many of these net- 
works, however, depends on the would be attacker being able to identify the 
critical nodes. For example, taking out one refinery would have little effect on 
the oil industry. But attacks on certain pipelines could have devastating effects. 
Computer systems, on the other hand, are especially vulnerable, and "(i) it 
would not be difficult to seriously disrupt the Social Security System, nor would 
it be impossible to inflict vast harm to the Federal Reserve." 23 

This special vulnerability makes it especially difficult to harden computer net- 
works against attack. Electronic vulnerabilities are often harder to guard than 
"traditional" vulnerabilities against terrorist attack. Part of the problem is the 
vastness and complexity of the information infrastructure. As of 1996, for exam- 
ple, the defense establishment reportedly had over 2.1 million computers, 
10,000 local networks, and 100 long-distance networks. 24 Moreover, although 
it is clear that this infrastructure is subjected to a large number of attacks, the 
number of reported incidents is probably just the tip of the iceberg because, ac- 
cording to estimates, only about one in 150 attacks is actually detected and re- 
ported. 25 The same pattern is likely present in other sectors of the US 
Government and in the vast private sector. 

Security technologies and products — such as, for example, firewalls 26 and 
smart cards 27 — may afford some protection, but they are hardly foolproof. 28 Ad- 
ditionally, as new security tools are developed, computer network attackers 
learn how to defeat them or exploit other vulnerabilities. 

Human failings greatly compound the problem, as when inexperienced or 
untrained users accidentally publicize their passwords or weak passwords are 
chosen which can be easily guessed. Accordingly, it is generally agreed that train- 
ing in information security for personnel, including top management, is a crucial 
element for a good information systems security program. 29 

Intelligence Operations 

There is general agreement that the collection and use of intelligence is an ef- 
fective tool in combating terrorism. Ideally, the gathering of intelligence serves a 
preventive role and enables law enforcement officials to intercept terrorists at an 
early stage, before they inflict injury on persons or property. However, even 

328 



John F. Murphy 



with respect to terrorists who employ more conventional methods than com- 
puters, this has proven to be a difficult task to accomplish. 

Problems may arise at the national level. In the United States, for example, 
there is evidence that constraints imposed on intelligence activities from 1975 to 
1980 may have adversely affected the timing and availability of preventive intel- 
ligence to the extent that the proportion of cases in which violence or other 
crimes were prevented declined. 30 

The Fourth Amendment to the US Constitution prohibits unreasonable 
searches and seizures and clearly would apply to law enforcement searches of 
computer data bases in the United States. 

The risk to privacy concerns would be especially great under such circum- 
stances. The Foreign Intelligence Surveillance Act of 1978 31 regulates electronic 
surveillance of foreign powers and the agents of foreign powers and defines "for- 
eign power" to include "a group engaged in international terrorism or activities 
in preparation therefor." 32 The act sets up a special court consisting of seven dis- 
trict judges who hear and determine applications for electronic surveillance war- 
rants. The statute allows warrantless electronic acquisition of communications 
exclusively between foreign powers not involving a substantial likelihood that 
the surveillance will acquire the contents of any communication to which a 
United States person is a party. 33 

The United States Supreme Court has held that the Fourth Amendment does 
not apply to searches and seizures abroad of property owned by non-US citizens 
or permanent residents. 34 However, search and seizure of material located in 
computers abroad may be viewed by foreign sovereigns as a violation of their 
territorial sovereignty. Moreover, the standard techniques for obtaining crimi- 
nal evidence abroad — letters rogatory and mutual legal assistance treaties, for 
example — are designed to assist in apprehending, prosecuting, and punishing 
those who have already committed crimes, not as a device to gather intelligence 
regarding the possible future commission of a crime. 

Under these circumstances, then, cooperation between US and foreign intelli- 
gence officers would seem vital. Nonetheless, foreign laws protecting privacy are, if 
anything, more stringent than those of the United States. Therefore, in either the 
domestic or the international context, the challenge to balance privacy and individ- 
ual rights concerns with the requirements of law enforcement is formidable. 35 

Management of an On-going Terrorist Incident 

The goals of counter-terrorism efforts during an ongoing terrorist incident 
would at a minimum be threefold: (1) to bring the terrorist attack to an end; 

329 



Computer Network Attacks by Terrorists 



(2) to minimize the damage caused by the attack; and (3) to prevent panic and 
restore order. A computer network attack by terrorists would probably com- 
plicate and make fulfillment of these goals more difficult. 

This would especially be the case if the computer attack was widespread and 
well coordinated and involved both governmental and private sector targets. 
Suppose, for example, that simultaneous computer attacks disrupted the US 
command and control infrastructure so that individual military units were un- 
able to communicate with each other or with a central command; air traffic con- 
trol systems were also disrupted, causing planes to crash with substantial loss of 
life; a "computer worm" or "virus" traveled from computer to computer across 
a network, damaging data and causing systems to crash. Assume further that the 
sources of these attacks could not be easily located. The challenges facing au- 
thorities seeking to bring the attacks quickly to a halt and to prevent panic would 
be monumental. 

Panic might be particularly pronounced because many otherwise informed 
people tend to dismiss the prospect of computer network attacks as a minor risk. 
According to Richard Clarke, the National Coordinator for Security, Infra- 
structure Protection, and Counter-Terrorism at the National Security Council: 

[CEOs of big corporations] think I'm talking about a 14-year-old hacking into 
their Web sites. I'm talking about people shutting down a city's electricity, 
shutting down 911 systems, shutting down telephone networks and 
transportation systems. You black out a city, people die. Black out lots of cities, 
lots of people die. It's as bad as being attacked by bombs. . . . Imagine a few years 
from now a President goes forth and orders troops to move. The lights go out, the 
phones don't ring, the trains don't move. That's what we mean by an electronic 
Pearl Harbor. 36 

Apprehension, Prosecution, and Punishment 

Apprehension 

Before a suspect can be apprehended, he or she must be located. As has often 
been noted elsewhere in this "Blue Book," computer network attackers can 
frustrate investigatory efforts by "looping and weaving" their attacks through 
several foreign countries, thus greatly complicating the efforts of investigators to 
follow their trail. If the suspect is located, it then becomes necessary to induce 
law enforcement officials of the place where he is located to take him into cus- 
tody. They will not do so unless the computer network attack in question would 

330 



John F. Murphy 



be a crime under their local law. 37 This requirement would also have to be met as 
a condition of extradition because of the "double criminality" requirement in 
virtually all extradition treaties. 38 

Prosecution and Punishment 

If the suspect is apprehended abroad, the issue arises whether, and if so where, 
he will be prosecuted. At present, no multilateral antiterrorism convention ex- 
pressly covers computer attacks. 39 However, depending on the circumstances, it 
is possible that one of the existing conventions — e.g., the Convention for Sup- 
pression of Unlawful Acts Against the Safety of Civil Aviation 40 or even the not 
yet in force International Convention for the Suppression of Terrorist 
Bombing 41 — could apply. If so, the extradite or prosecute approach that is the 
keystone of these conventions would govern the rights and obligations of the 
States parties. 

Under this approach a State party that apprehends an alleged offender in its 
territory must either extradite him or submit his case to its own authorities for 
purposes of prosecution. 42 Strictly speaking, none of the antiterrorism conven- 
tions alone creates an obligation to extradite; by requiring the submission of al- 
leged offenders for prosecution if extradition fails, they contain an inducement to 
extradite. Moreover, a legal basis for extradition is provided either in the con- 
vention or through incorporation of the offenses mentioned in the convention 
into existing or future extradition treaties between the parties. To varying de- 
grees, the conventions also obligate the parties to take the important practical 
step of attempting to apprehend the accused and hold him in custody. 43 

The most important goal of these provisions is to ensure prosecution of the 
accused. To this end, the conventions state quite strongly the alternative obliga- 
tion either to extradite or to submit the accused for prosecution. The obligation, 
however, is not to try the accused, much less to punish him, but to submit the 
case to be considered for prosecution by the appropriate national prosecuting 
authority. If the prosecuting State's criminal justice system lacks integrity, the 
risk of political intervention in the prosecution or at trial exists. Such interven- 
tion may prevent the trial or conviction of the accused, or act as a mitigating in- 
fluence at the sentencing stage. 

Even if the prosecuting State's criminal justice system functions with integ- 
rity, it may be very difficult to obtain the evidence necessary to convict the ac- 
cused when the alleged offense was committed in another country. This very 
practical impediment to conviction can be removed only by patient and sus- 
tained efforts to develop and expand "judicial assistance" and other forms of 

331 



Computer Network Attacks by Terrorists 



cooperation between the law enforcement and judicial systems of different 
countries. The conventions create an obligation to cooperate in this regard, but, 
as will be demonstrated in greater detail later, this obligation is often difficult for 
countries with different types of legal systems to meet, even assuming that they 
act in complete good faith. The difficulty may be even greater when cybercrime 
is involved. 

Many, perhaps most, instances of computer network attack would not be 
covered by the antiterrorist conventions. In such cases, the United States would 
need to engage in a process of rendition to get the suspect before a US court. Be- 
sides extradition, the forms of rendition include exclusion, deportation, and ab- 
duction. 44 Subject perhaps to very limited exceptions, abduction is illegal, 45 and 
exclusion and deportation involve unilateral action by the State of refuge and are 
relatively informal measures subject to a relative lack of legal limitations. Extradi- 
tion is generally recognized as the only process of rendition that satisfactorily 
protects the rights of an accused. Assuming that the United States did not wish or 
could not convince the State of refuge to deport the accused, it would try to ex- 
tradite her. The obstacles to the success of this endeavor, however, could be 
considerable. 

Barriers to Extradition 

First, the requested country would be under no obligation to extradite absent 
an extradition treaty between it and the United States. 46 Although the United 
States is a party to more than 100 bilateral extradition treaties and to the 
Inter- American Convention on Extradition with 13 parties, 47 the absence of an 
extradition treaty has been a problem in some high profile cases. 48 Moreover, al- 
though the United States would be entitled to use most of the antiterrorist con- 
ventions for purposes of extradition, it has chosen not to do so. 49 The United 
States also will not itself extradite a person to a requesting country in the absence 
of an extradition treaty. 50 

Even with an extradition treaty, the extradition process is often fraught with 
difficulties. As already noted, many, if not most, US extradition treaties require 
that the action in question be a crime in both the requesting and requested 
country for extradition to take place. This dual criminality requirement can 
pose major problems in computer crime cases. Although the United States has 
amended its criminal code to penalize a wide range of computer crimes, other 
countries have been slow in doing the same. 51 This has resulted in cases where 
the United States has identified the location of a perpetrator of a computer 
crime, but has been unable to secure her extradition because the act in ques- 
tion was not a crime under the law of the country where the perpetrator was 

332 



John F. Murphy 



found and the extradition treaty between the United States and the country in 
question contained a dual criminality requirement. 52 Although there is wide- 
spread recognition that countries need to reach a consensus as to which com- 
puter related activities should be criminalized, this is a process that will take 
some time. 53 

Under the extradition law of a number of countries, it is necessary for a re- 
questing country to present the requested country with satisfactory (to the re- 
quested country) evidence that a crime covered by the treaty has been 
committed. 54 This has especially been the case with common law countries. 
Great Britain, for example, traditionally required prima facie evidence of a crime 
covered by the extradition treaty. For countries on the continent of Europe, 
which had no such requirement, this posed a "mystery" as to precisely how 
much evidence was required to meet this standard. 55 In 1982, approximately a 
third of the applications made to the United Kingdom under its extradition trea- 
ties failed and the most common cause of failure was the requesting State's in- 
ability to satisfy the prima facie requirement. 56 Because of this record of failure in 
the extradition process, Great Britain amended its extradition law in 1989 to ex- 
clude selectively the prima facie requirement in relation to certain States, and 
then ratified the European Extradition Convention, which has no such require- 
ment. 57 Instead, the convention requires only that the request be accompanied 
by a certificate of conviction or the warrant for arrest, a statement of the offense 
and a copy of the necessary laws. 58 The US test of "probable cause," which re- 
quires only that there be reasonable grounds to make it proper that an accused be 
tried for the crime, has not proven to be a barrier to extradition. 59 

The prima facie requirement has been defended on the ground that it oper- 
ates as a necessary protection for the individual who otherwise may be removed 
to another State merely because he is suspected of having committed a crime 
covered by the extradition treaty. 60 Be that as it may, there is no doubt that the 
prima facie requirement makes extradition more difficult. This difficulty may be 
especially great if computer network attacks are involved because the barriers to 
gathering evidence in such cases, as already noted, may be substantial. 

Another barrier to the extradition of international terrorists may be the refusal 
of some countries, especially those with a civil law background, to extradite their 
nationals. 61 One of the grounds advanced by Libya in refusing to surrender two 
Libyan members of the Libyan secret service who were indicted by a grand jury 
of the District of Columbia in November 1991 for the December 1987 explo- 
sion of Pan Am flight 103 over Lockerbie, Scotland that killed 270 persons, in- 
cluding 189 Americans, was that the Libyan Constitution prohibited the 
extradition of Libyan nationals. 62 

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Computer Network Attacks by Terrorists 



The Austrian Supreme Court has gone so far to claim that the provision in 
the Austrian Constitution prohibiting the extradition of nationals reflected "a 
generally recognized rule of international law." 63 Even the government of the 
United Kingdom reserves the right not to extradite nationals where there is no 
extradition treaty with the requesting State and the latter is seeking the fugitive's 
return under a multilateral, antiterrorist convention. 64 

At least in Europe, however, the situation changed substantially in 1996, 
when the European Union concluded a Convention Relating to Extradition of 
Nationals. 65 The first paragraph of Article 7 of that convention provides that extra- 
dition may not be refused on the ground that the "person claimed is a national of 
the requested Member State." But the second and third paragraphs of Article 7 of 
the convention permit a five year rolling reservation allowing member States to 
refuse extradition of their nationals. According to Geoff Gilbert, the Explanatory 
Report "makes clear several matters:" 

[F]irst, that the Nordic members of the European Union will no longer classify 
domiciled aliens as nationals for the purposes of intra-EU extradition; secondly, 
that the protection of nationals might be achieved by those States which do not 
ordinarily extradite nationals, by entering a reservation that any sentence imposed 
by the requesting State will be served in the requested State; next, that given that 
some States are constitutionally prohibited from extraditing their own nationals, 
that they review the scope of the restriction at least once every five years; and, 
finally, that reservations are not indefinite and can lapse. 66 

In other words, even with the conclusion of the 1996 convention civil law 
countries resist extraditing their own nationals. 

On the other hand, as to certain international crimes, there is some evidence 
that civil law States are beginning to relax their previous practice of never extra- 
diting their nationals, at least in their extradition relations with common law 
States. For example, the 1983 extradition treaty between the United States and 
Italy specifically provides that extradition shall not be refused on grounds of na- 
tionality and is aimed at combatting the coordinated organized crime in the two 
countries. 67 Further, the increasing practice of repatriating prisoners to serve 
their sentences in their own country has reportedly convinced some civil law 
countries in Europe to extradite their nationals to common law countries. 68 

Outside of Europe there has also been some movement, albeit it slow and 
tentative. In 1979 the United States and Colombia concluded an extradition 
treaty that allowed for the surrender of nationals. 69 The treaty was a response to 
the inability of the United States to secure the extradition of Colombian 

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John F. Murphy 



nationals who had imported illegal drugs, especially cocaine, into the United 
States and who had so corrupted Colombian law enforcement officials that trial 
in Colombia was not possible. The new extradition treaty was extremely un- 
popular in Colombia, however, and in 1988 the Colombia Supreme Court de- 
clared the treaty unconstitutional. 70 Repeated efforts by the United States 
resulted in Colombia passing a new law allowing for the extradition of its na- 
tionals in 1997, 71 and at this writing Colombia has extradited two drug suspects 
to the United States. 72 

Relations between the United States and Mexico concerning the possible ex- 
tradition of Mexican nationals have been especially tortuous. 73 Under the 
US-Mexican Extradition Treaty, 74 neither party is required to extradite its na- 
tionals. Rather, Article 9 of the treaty gives both parties the option to prosecute 
as an alternative to extradition, and from 1978 until 1996 Mexico, as a matter of 
policy, refused to extradite its citizens to the United States. 75 Moreover, alleg- 
edly as a result of corruption among Mexican law enforcement officials, persons 
that the United States sought to extradite, especially for drug trafficking, were 
often not prosecuted in Mexico. Finally, in 1996, Mexico surrendered four of its 
citizens to the United States for prosecution, two of them for drug trafficking. 76 
Nonetheless, since that time, Mexico's record, from the US perspective, has been 
unsatisfactory, 77 and there have been recent court challenges to the extradition of 
Mexican nationals that may have to be resolved by Mexico's highest court. 78 

Recognition by the requested country that the requesting country has juris- 
diction to try the accused is a prerequisite to extradition. The complexity of civil 
and criminal jurisdictional issues in cyberspace, however, is just beginning to be 
recognized. 79 

In recent years, at both the state and the federal level, the United States has 
extended the death penalty to more and more crimes, including terrorist 
crimes. 80 By contrast, since World War II, opposition to the death penalty has 
resulted in many countries including clauses in extradition treaties that exclude 
extradition where the requesting State retains the death penalty and is unwilling 
or unable to provide assurances that this penalty will not be carried out if the 
accused is extradited. 81 This development has greatly complicated US extradi- 
tion relations with other countries, including cases involving terrorist crimes. 82 

Another important development in recent years has been the increasing im- 
portance of human rights considerations as a limitation on extradition. 83 Oppo- 
sition to the death penalty in the Western European States is based in large part 
on the belief that it violates fundamental human rights values. On the other 
hand, as noted by John Dugard and Christine Van den Wyngaert, "[t]oday states 
are irreconcilably divided over the morality and effectiveness of the death 

335 



Computer Network Attacks by Terrorists 



penalty," 84 and as a result its imposition is not prohibited by general international 
law. Under certain circumstances, however, according to some authorities, im- 
position of the death penalty may constitute cruel, inhuman, or degrading treat- 
ment or punishment, and thus violate general international law norms. 

The best known of these authorities is the decision of the European Court of 
Human Rights in Soering v. United Kingdom.^ Soering, a West German national, 
murdered his girlfriend's parents in Virginia and fled to the United Kingdom. In 
response to a US request, the United Kingdom ordered his extradition to the 
United States. Soering, however, petitioned the European Commission of Hu- 
man Rights, which referred his case to the European Court of Human Rights. 
The court held that the United Kingdom had an obligation under Article 3 of 
the European Convention of Human Rights, which prohibits torture and inhu- 
man or degrading treatment or punishment, not to extradite Soering to the 
United States where there was a real risk that he would be subjected to inhuman 
or degrading treatment by being kept on death row for a prolonged period in the 
state of Virginia. Eventually Soering was extradited to the United States when 
the United Kingdom received assurances from US officials that he would not be 
subjected to the death penalty. 86 

Although it is not a judicial body with authority to hand down a decision 
binding on parties to a dispute, the Human Rights Committee, which is the 
body established by the International Covenant on Civil and Political Rights 87 
to supervise implementation of the covenant by States parties, found in Ng v. 
Canada^ that California's practice of executing by gas asphyxiation, which 
might take over ten minutes to cause death, resulted in prolonged suffering con- 
stituting cruel and inhuman treatment within the meaning of Article 7 of the 
covenant. On the basis of this finding, the committee was of the opinion that 
Canada, which could reasonably have foreseen that Ng would be executed in 
this way, had violated its obligations under the covenant by extraditing him to 
the United States. 

In 1980 Alona Evans identified the political offense exception, which is 
grounded, at least in part, in human rights considerations, 89 as the "hot issue" of 
extradition law. 90 At that time, the political exception was regarded as perhaps 
the primary barrier to the extradition of international terrorists. 91 But in recent 
years States have taken a variety of steps to limit or even to eliminate the political 
offense exception as a defense to extradition, 92 and it is unclear whether the politi- 
cal offense exception remains a major barrier to extradition at the present time. 93 

As an alternative to or a substitute for the political offense exception, extradi- 
tion treaties may permit the accused to claim that he will not receive a fair trial in 
the requesting country. Article 3(a) of the United States-United Kingdom 

336 



John F. Murphy 



Supplementary Extradition Treaty of 1985, 94 for example, expressly permits a 
judicial inquiry into whether the extraditee will be "prejudiced at his trial or 
punished, detained or restricted in his personal liberty by reason of his race, reli- 
gion, nationality or political opinions." This so-called "humanitarian exception" 
was inserted because of the concern of some US Senators that the elimination of 
the political offense exception effected by the supplementary extradition treaty 
would result in inadequate protection for extraditees. By giving the courts the 
responsibility of ruling on allegations of an unfair trial, the treaty waters down 
the rule of noninquiry US courts normally apply, under which the courts defer 
to the executive branch to make the decision as to the validity of such allega- 
tions. 95 In practice, however, courts in the United States have been extremely 
reluctant to make a finding that would reflect on the standards of justice in the 
United Kingdom. 96 On the other hand, courts in both the United States and 
Canada have held that the rule of noninquiry is not absolute and that it will not 
be followed if the likely treatment in the requesting State would be shocking or 
simply unacceptable. 97 

As a result of these many barriers, the extradition process has been described as 
"a creaking steam engine of an affair." 98 Former US Attorney General Benjamin 
R. Civiletti was of the view that extradition laws belong to "the world of the 
horse and buggy and the steamship, not in the world of commercial jet air trans- 
portation and high speed telecommunications." 99 It is therefore not surprising 
that law enforcement officials have often turned to alternative forms of rendition 
in their efforts to bring alleged offenders to a forum for prosecution. 

Alternatives to Extradition 

One alternative to extradition that has been employed with some frequency 
in Europe is "hot pursuit." 100 This approach allows the police authorities of one 
State to cross the borders of a neighboring State in hot pursuit of a fleeing fugi- 
tive, and it is consistent with the policy of internal open borders that the Euro- 
pean Union has followed since 1993. Also, the Schengen Accord of 1990, 101 
concluded among Belgium, the Federal Republic of Germany, France, Luxem- 
bourg, and the Netherlands, allows the police agencies of the States parties to 
cross borders in hot pursuit, although the precise scope of this authority is a mat- 
ter of dispute. 102 Outside of Europe, the doctrine of hot pursuit is apparently not 
widely utilized as a method of rendition. 103 

The methods of rendition most often utilized as alternatives to extradition are 
exclusion and deportation. 104 Exclusion may occur when fugitives are appre- 
hended as they attempt to enter a country, and deportation may be an option 

337 



Computer Network Attacks by Terrorists 



when fugitives are arrested within a country's territory. In US practice, not sur- 
prisingly, many of these exclusions and deportations have involved Canada and 
Mexico and have been directed towards persons accused of drug trafficking. 105 
Both exclusion and deportation are civil processes, designed for irnmigration con- 
trol and dominated by the executive. As a consequence, exclusion and deportation 
proceedings utilized for rendition purposes do not apply criminal justice standards, 
either with respect to the interests of the States involved or to protection of the ac- 
cused. Unlike extradition, exclusion and deportation rarely involve a formal re- 
quest by a State seeking a return of the alleged offender. On the contrary, 
exclusion and deportation are effected at the instance of a territorial State. 106 

Perhaps the most controversial use of deportation as an alternative to extradi- 
tion was the case of Joseph Doherty. After unsuccessful attempts to extradite 
Doherty, a member of the Provisional Irish Republican Army, from the United 
States to the United Kingdom, where he was wanted for his role in the death of a 
British soldier and for his escape from prison, because of decisions by US courts 
that his offenses fell within the political offense exception in the US-UK extradi- 
tion treaty, 107 the United States Supreme Court upheld his deportation to 
Northern Ireland after long and complicated legal proceedings. 108 Apparently, 
the deportation of Doherty was handled as a purely internal matter and not in re- 
sponse to a request from the United Kingdom that he be deported. Although 
some commentators have argued that it is improper for one State to request an- 
other to deport an individual as a means of circumventing extradition proce- 
dures, US courts have repeatedly held that the existence of an extradition treaty 
between the United States and another country does not bar the use of other 
means to obtain custody over a criminal located abroad. 109 In contrast, complic- 
ity between the French government and another government to use deportation 
as an alternative to extradition may reportedly be the basis for dismissal of the 
prosecution. 110 

The most controversial alternative to extradition has, of course, been abduc- 
tion or kidnaping of alleged offenders. Both commentators and State practice 
support the general proposition that international law prohibits a State from 
sending its agents into another State to abduct an individual residing there with- 
out that other State's permission. 111 Abductions would seem prima facie to vio- 
late a principal rule of international law, which states that a nation is absolutely 
sovereign within the boundaries of its own territory. 

There is at least an argument, however, that abduction may be consistent with 
international law under certain extraordinary circumstances. Despite the prohi- 
bition against the use of unilateral force in Article 2(4) of the UN Charter, Arti- 
cle 51 allows a victim of an armed attack to use force to defend itself pending 

338 



John F. Murphy 



action by the Security Council. 112 Justification of a government sponsored ab- 
duction of a fugitive necessarily requires characterizing the actions of the fugitive 
as an "armed attack" within the meaning of Article 51. 113 This characterization 
has most often been applied to cases of terrorism and drug trafficking. In 1989, 
expressly repudiating an earlier opinion to the contrary in 1980, 114 then Assistant 
Attorney General William Barr produced a legal opinion that international law 
allowed US law enforcement officials to make extraterritorial arrests under cer- 
tain circumstances. 115 Testifying before Congress, Barr stated on behalf of the 
Department of Justice: 

[T]here are instances where extraterritorial arrest without the host sovereign's 
consent may be justified under international law. For example, in response to an 
actual or threatened terrorist attack, we would have good grounds under general 
principles of international law to justify extraterritorial law enforcement actions 
over a foreign sovereign's objections. Moreover, in appropriate circumstances we 
may have a sound basis under international law to take action against large-scale 
drug traffickers being given safe haven by a government acting in complicity with 
their criminal enterprise. Thus, it may well be that the President will choose to 
direct extraterritorial arrests only when he believes that he is justified in doing so 
as a matter of self-defense under international law. 116 

The validity of Mr. Barr's proposition has been subject to sharp debate. 117 In 
practice, however, at least as of this writing, the US Government has made no 
extraterritorial arrests of alleged terrorists without the consent of the territorial 
sovereign. The 1987 sting operation that resulted in the apprehension of Fawas 
Younis took place on a US ship in the Mediterranean after Younis had been 
lured there by US agents. 118 

In contrast, the US Government has made extraterritorial arrests in drug traf- 
ficking cases. 119 The most controversial of these was the 1990 apprehension and 
deportation to the United States of Dr. Humberto Alvarez-Machain by Mexi- 
can agents paid by the US Drug Enforcement Agency (DEA). Dr. Alvarez- 
Machain was a prominent Mexican gynecologist who had been indicted for the 
kidnap and murder of Enrique Camarena, a DEA agent stationed in Guadalajara. 
After strong protests by the Mexican Government, and a circuit court opinion 
holding that the abduction violated the US-Mexico extradition treaty, 120 the 
US Supreme Court ruled that the abduction was not barred by the extradition 
treaty and that US courts could exercise jurisdiction over the case. 121 Although 
the majority opinion all but conceded by way of dicta that the abduction vio- 
lated norms of customary international law, 122 the court did not address the issue 

339 



Computer Network Attacks by Terrorists 



of whether this might constitute a basis for US courts to decline jurisdiction. 
Courts in several other countries have ruled that they have discretion in such cir- 
cumstances to refuse to exercise jurisdiction. 123 

The Supreme Court's decision in Alvarez -Machain has been subjected to 
sharp criticism. 124 Be that as it may, Geoff Gilbert has suggested that, paradoxi- 
cally, the Court's decision may "hasten the demise of State sponsored kidnaps of 
alleged international criminals, for it has brought to the fore this attempt to au- 
thorize the 'manifestly illegal.'" 125 Indeed, in the wake of Alvarez -Machain, the 
Bush Administration quickly responded with assurances that it had no intention 
of either increasing or institutionalizing the practice of extraterritorial abduc- 
tions. 126 Also, in 1994, the United States and Mexico concluded a Treaty to 
Prohibit Transborder Abductions 127 (which, however, as of this writing has not 
yet been sent to the Senate for its advice and consent to ratification). 

Mutual Assistance in Criminal Matters 

Regardless of what method of rendition is used, once an accused is before a 
US court, it is necessary to prove his guilt beyond a reasonable doubt. But if the 
evidence to do this is located abroad, and cannot be obtained, the successful ren- 
dition of the accused may be a pyrrhic victory. 

Moreover, the legal mechanisms for obtaining evidence abroad for use in 
criminal proceedings are less than satisfactory. 128 Letters rogatory, the standard 
mechanism, are especially ill-suited for obtaining evidence regarding computer 
crimes. Letters rogatory require an application to a foreign court and usually pro- 
vide for advance notice and participation by opposing parties. Hence, the proce- 
dure is relatively public, as compared to the US practice of conducting criminal 
investigations under the veil of grand jury secrecy. It is, moreover, even under 
the best of circumstances extremely slow, and foreign tribunals may give limited 
or no assistance at the pre-indictment phase of a case. In any event, the decision 
of foreign tribunals to respond favorably is purely discretionary, since the letters 
rogatory practice is based on comity considerations rather than on binding inter- 
national legal norms. 

Because they create binding international legal obligations for the States par- 
ties, Mutual Legal Assistance Treaties (MLATs) may be of greater value. As of 
November 15, 1997, the United States had 23 MLATs in force. 129 They provide 
prosecutors with a channel for sending requests for assistance in obtaining evi- 
dence through a Central Authority in one country 130 to a corresponding prose- 
cutorial authority in the other country, which oversees the prompt execution of 
the request. Under MLATs, foreign prosecutorial authorities will normally seek 

340 



John F. Murphy 



mandatory process under their law, when necessary, to execute the request and 
keep it confidential to the extent possible. 

The US MLATs contain a provision that obligates a requested country to 
conduct searches and seizures on behalf of a requesting country if the request in- 
cludes information justifying such action under the laws of the requested coun- 
try. Only a few of these MLATs, however, apply broadly to all law enforcement 
investigations and prosecutions, rather than only to certain types of offenses such 
as drug trafficking and money laundering. Additionally, the political offense ex- 
ception is often available in MLATs and can be a barrier to obtaining the neces- 
sary evidence. Finally, even though the MLAT process is usually much faster 
than letters rogatory, as we have seen, evidence of computer crime can be rapidly 
transferred out of the jurisdiction of the requested country to other countries 
with whom the United States has no MLAT. 

Especially for the collection of electronic evidence, MLATs, while an im- 
provement on letters rogatory, are unequal to the task. The problem has been 
aptly posed by Michael Sussmann: "How does law enforcement collect elec- 
tronic evidence that may be scattered across several different countries, can be 
deleted or altered with one click of a mouse, may be encrypted, and will ulti- 
mately need to be authenticated in another country's court?" 131 The ability to 
delete or alter electronic evidence with the click of a mouse renders even the rel- 
atively rapid procedures available under MLATs hopelessly slow and cumber- 
some. Accordingly, in Sussmann's view: 

[W]hen electronic evidence is sought, there may be a need for mechanisms such 
as a "preservation of evidence request" or "protected seizure," which would 
work as follows. Where there is a particularized concern about the loss of 
electronic evidence, a country would make an informal international request that 
the data immediately be preserved. This could be accomplished in a number of 
ways, from having a telecommunications carrier or ISP [Internet Service 
Provider] copy and store a customer's data, to actually seizing a criminal's 
computer and securing, but not searching, it for a short period of time. Once data 
is (sic) protected from loss, expedited processes would provide the foreign 
country with formal documentation to authorize the issuance of a domestic 
search warrant or similar process. 132 

As Sussmann notes, the US Code provides for a form of "preservation of evi- 
dence" request. 133 Most other countries apparently do not have such provisions 
in their laws, although the need for them has recently been recognized, at least in 
principle. Once such provisions are in place, it may be necessary to revise the 

341 



Computer Network Attacks by Terrorists 



MLATs to ensure that the law enforcement officials of the other party to the 
treaty will be able to take advantage of them. 

Transborder searches and seizures are an especially difficult problem when 
electronic evidence is involved. Although paper documents are normally lo- 
cated in the same country as the person being investigated, this is not necessarily 
the case with electronic evidence. To the contrary, electronic data may be stored 
in another country or countries to keep them beyond the reach of law 
enforcement. 

Transborder searches consist of a law enforcement officer in his or her own 
country accessing a computer in another country to obtain electronic evi- 
dence. 134 Such searches may take place unknowingly. For example, if an in- 
vestigator searches the computer of a domestic corporation, the data accessed 
through that search may be located in another country unbeknownst to the in- 
vestigator. Unconsented to transborder searches of electronic evidence may be 
viewed by the country where the search occurs as a violation of its sovereignty 
or even of its criminal law, subjecting the individual investigator to possible 
criminal liability. From a law enforcement perspective, it is necessary for coun- 
tries to agree on principles permitting transborder searches under clearly de- 
fined but broad circumstances. 135 Others may be of the view that the need to 
protect data in a particular country outweighs law enforcement concerns. Al- 
though this issue is currently being debated in several international forums, its 
outcome is far from certain. 136 

If an investigator succeeds in accessing electronic evidence, wherever it may 
be located, the evidence may be unintelligible because it is encrypted, i.e., 
scrambled to protect its confidentiality. The need for encryption is widely rec- 
ognized as necessary to protect the confidentiality of e-mail traffic, stored data, 
and commercial transactions. However, when criminals use encryption for 
communications or data storage, they may severely hamper criminal investiga- 
tions by preventing timely access to the content of seized or intercepted data. 
Hence, law enforcement officials are concerned that they be able to obtain the 
"keys" to decrypt encrypted data. 137 In contrast, privacy advocates, cyber-rights 
groups, and defense counsel, among others, oppose granting law enforcement 
broad authority in this area. 

Moreover, according to Phillip Reitinger, the principal legal obstacle to 
law enforcement access to "plaintext" (i.e., unencrypted or decrypted text) 
and keys is the Fifth Amendment privilege against self-incrimination. 138 
Reitinger concludes that a grand jury subpoena can order the production ot 
the plaintext of encrypted documents and the production of documents that 
reveal keys. He further concludes, however, that whether law enforcement 

342 



John F. Murphy 



can compel production of keys that are only known, rather than recorded, is 
an open question. 139 

At this writing, Congress has passed, and the President has signed, the 
"Uniting and Strengthening America by Providing Appropriate Tools Required 
to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. " 140 
This highly controversial legislation, which critics have argued could be used 
overzealously and harm innocent people, 141 provides, for the first time, for fed- 
eral monitoring of computer communications, allowing investigators to track 
the sending and receiving of e-mail and Internet connections. They will not, 
however, be able to read the content of such computer communications with- 
out first obtaining a warrant. The legislation will also, among other things, allow 
investigators to conduct unannounced searches of property owned or occupied 
by terrorism suspects and to share information from federal criminal investiga- 
tions with intelligence agencies for the first time. 

There is also controversy over the efforts of law enforcement officials to se- 
cure laws that would permit them to sidestep encryption. 142 Regardless of how 
this debate is resolved, there is a need to reach agreement at the international 
level on decryption support services. As Michael Sussmann has pointed out, 
only the more modern of US MLATs contain provisions that are flexible 
enough to accommodate such newer forms of assistance as decryption ser- 
vices. 143 Even these MLATs do not specifically address the subject of decryp- 
tion, and there currently are no international commitments to provide decryp- 
tion support. Although there are discussions and negotiations underway in 
various international forums designed to resolve the problems of access to 
computers by law enforcement persons and encryption along with related is- 
sues, the final outcome of these efforts is uncertain at this writing. 144 

Some Concluding Observations 

From the foregoing discussion, one may safely conclude that the prospect of 
computer network attacks by terrorists has only recently begun to receive the at- 
tention — from statesmen, law enforcement officials, and scholars — that it de- 
serves. Moreover, although international terrorism has long been a subject of 
intense scrutiny, the prospect of computer network attacks by terrorists intro- 
duces legal and operational complications for those engaged in efforts to prevent, 
contain, and punish terrorist attacks. 

Law and the legal process has traditionally lagged technological develop- 
ments and the computer revolution is no exception. In particular, the speed 
with which computers operate and the anonymity of their operators create 

343 



Computer Network Attacks by Terrorists 



challenges for the "snail pace" of traditional law enforcement methods. Also, as 
we have seen, at the domestic level in the United States there is currently a sig- 
nificant tension between the perceived needs of law enforcement and protec- 
tion of the privacy rights of US citizens. At the international level this tension 
is likely to be as intense, perhaps even more, than it is in the United States, 
since the Europeans, for example, strongly emphasize the protection of privacy 
in their law and practice. 140 

Although there are strenuous efforts in various international fora to resolve 
these problems, including the adoption of a draft convention on computer crime 
under the auspices of the Council of Europe, the success of these endeavors is by 
no means assured. Nonetheless, it has long been a truism that international coop- 
eration is crucial to successful efforts to combat international terrorism. 146 This 
truism applies a fortiori to efforts to combat computer network attacks by 
terrorists. 

Moreover, international cooperation in combating terrorism has often taken 
the form of informal arrangements and liaisons between law enforcement offi- 
cials in several countries, rather than the use of formal arrangements spelled out 
in treaties or national legislation. In view of the speed with which law enforce- 
ment personnel need to act to cope with a computer network attack, informal- 
ity is likely to be required to give law enforcement the flexibility it needs to 
operate successfully. At the same time, the need for appropriate restraints on law 
enforcement of the kind provided by legal regulation is also great in the field of 
computer crime. The struggle to find the right balance is likely to continue for 
some time to come. 



Notes 

* The author would like to thank Brian T. Gorman, a graduate of Villanova University School 
of Law, for research assistance on this paper and Gregory Schaffer of the Division of Computer 
Crimes and Intellectual Property in the US Department offustice for providing him with a copy of 
an article by his colleague, Michael Sussmann, prior to publication. 

1. Although not appearing in this "Blue Book," Gregory Shaffer spoke on the "International 
Aspects of Computer Crimes" at the symposium on "Computer Network Attack and 
International Law" held at the Naval War College from June 25-29, 1999. 

2. See Georg Schwarzenberger, Tlic Problem of an International Criminal Law, 3 CURRENT 

Legal Problems 263 (1950). 

3. For further discussion, see John F. Murphy. International Crimes, in 2 UNITED NATIONS 
LEGAL ORDER 993 (Oscar Schachter &: Christopher C. Joyner eds., 1995); ALFRED P. RUBIN, 
THE LAW OF PIRACY 319-37 (1988). 

4. See John F. Murphy, Defining International Terrorism: A Way Out of the Quagmire. 19 ISRAEL 

Yearbook of Human Rights 13 (Yoram Dinstein ed.. 1989). 

5. Id. at 25-29. 



344 



John F. Murphy 



6. 18 US Code §233 1(c). 

7. H.R. Rep. 99-783, 99th Cong., 1st Sess. 88 (1986). 

8. Id. 

9. The reasons the Omnibus Diplomatic Security and Antiterrorism Act of 1986 dropped any 
reference to terrorism as an element of the offense itself are enlightening. These reasons have been 
well summarized by Geoffrey Levitt, formally an attorney in the Office of the Legal Adviser, 
Department of State, who worked on the act. Levitt first suggests that the political intent element 
characteristic of a "generic" definition of terrorism is inherently vague, and then states: 

In the US legal context, this flaw poses fundamental constitutional problems. The due 
process clause requires that criminal statutes "give a person of ordinary intelligence fair 
warning that his contemplated conduct is forbidden by the statute." When first amendment 
concerns are also involved, as they would of necessity be in any statute that included a 
politically oriented intent element, this requirement has even greater force. Even were such 
problems somehow resolved, the breadth of a generic intent element would severely 
complicate the task of prosecutors, who would be required to prove beyond a reasonable 
doubt the presence of a particular political motivation. Consequently, this would leave the 
Government open to accusations of selective prosecution based on the political views of 
defendants. A separate but substantial problem would be the likely absence of a similar 
intent element in the penal law of extradition treaty partners, thus removing the factor of 
dual criminality, a prerequisite to extradition — and one must wonder what the point would 
be of an international terrorism offense for which the United States could not successfully 
request the extradition of a suspected offender. . . . 

Geoffrey Levitt, Is "Terrorism" Worth Defining, 13 OHIO NORTHERN UNIVERSITY LAW 
REVIEW 97, 113 (1986). 

10. Under the US Government approach, the term "noncombatant" is "interpreted to include, 
in addition to civilians, military personnel who at the time of the incident are unarmed or not on 
duty. . . . We also consider as acts of terrorism attacks on military installations or on armed military 
personnel when a state of military hostilities does not exist at the site, such as bombings against US 
bases in Europe, the Philippines, or elsewhere." US Department of State, Patterns of Global 
Terrorism: 1998, April 1999, at vi, note 2. 

11. Id. at vi— vii. 

12. Monty Python fans will remember that their television show began with the proclamation 
"and now for something completely different." 

13. See Michael N. Schmitt, Computer Network Attack and the Use of Force in International Law: 
Thoughts on a Normative Framework, 37 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 885, 
890 (1999). 

14. Id. at 890. 

15. Id. at 888. 

16. Id. at 892-93. 

17. See, e.g., the summary of the remarks of J. Christian Kessler mJOHN F. MURPHY, LEGAL 

aspects of international terrorism; summary report of an international 
Conference 45 (1980). 

18. Summary of Remarks of Robert Kupperman in id. at 41-42. 

19. Lawrence G. Downs, Jr., Digital Data Warfare: Using Malicious Computer Code as a Weapon, in 
ESSAY ON STRATEGY XIII (Mary A. Sommerville ed., 1999). 

20. See MURPHY, supra note 17, at 35. 

21. See Brian M. Jenkins and Alfred P. Rubin, New Vulnerabilities and the Acquisition of New 
Weapons by Nongovernmental Groups, in LEGAL ASPECTS OF INTERNATIONAL TERRORISM 221, 
240 (Alona E. Evans and John F. Murphy eds., 1978). 

22. Summary of Remarks of Robert Kupperman, supra note 18, at 42. 

345 



Computer Network Attacks by Terrorists 



23. Id. 

24. Information Security: Computer Attacks at Department of Defense Pose Increasing Risks, 
Abstracts of GAO Reports and Testimony, May 22, 1996, www.access.gpo.gov/cgi-bin/ 
getdoc.cgi?dbname=gao&docid=f:ai96084.txt, at 5. 

25. Id. 

26. "Firewalls are hardware and software components that protect one set of system resources 
(e.g., host systems, local area networks) from attack by outside network users (e.g., Internet users) 
by blocking and checking all incoming network traffic." Id. at 4, note 2. 

27. "Smart cards are access cards containing encoded information and sometimes a 
microprocessor and a user interface. The encoded information and/or the information generated 
by the processor are used to gain access to a computer system or facility." Id. at 4, note 3 ^[ 28. On 
the contrary, according to a recent article, "there is no such thing as a secure computer network." 
Charles C. Mann, The Mole in the Machine, THE NEW YORK TIMES MAGAZINE, July 25, 1999, at 
32. In this article, Mann quotes Eugene H. Spafford, Director of the Purdue Center for Education 
and Research in Information Assurance and Security, as stating: "The only system that is truly 
secure is one that is switched off and unplugged, locked in a titanium safe, buried in a concrete vault 
on the bottom of the sea and surrounded by very highly paid armed guards." Id. 

29. See Abstracts of GAO Reports and Testimony, supra note 24, at 19, 23—24. 

30. Brian Jenkins, Sorrel Wildhorn & Marvin Lavin, Intelligence 
Constraints of the 1970's and Domestic Terrorism (1982). 

31. 50 US Code §§ 1801-08 (1994). 

32. Id.,§ 1801(a)(4). 

33. Id., § 1802(a)(1) (A)(1) and (B). 

34. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). 

35. To be sure, there are success stories. For example, according to the Washington Post, after 
the embassy bombings in Nairobi and Dar es Salaam, the United States revealed that, in 1997, it 
had successfully prevented two terrorist attacks on US embassies by infiltrating terrorist cells and 
intercepting electronic communications. See Walter Pincus & Vernon Loeb, CIA Blocked Two 
Attacks Last Year, Washington Post, Aug. 11, 1998, at A16. 

36. Tim Weiner, The Man Who Protects America From Terrorism, NEW YORK TIMES, Feb. 1, 
1999, at A3. 

37. See Henry H. Perritt, Jr., Jurisdiction in Cyberspace, 41 VlLLANOVA LAW REVIEW 1, 88 
(1996). According to Michael Sussmann, a Senior Attorney in the Computer Crime and 
Intellectual Property Section of the US Department of Justice, in 1992 US efforts to get help 
from the Swiss in a case involving hackers from Switzerland who attacked the San Diego 
Supercomputer Center were stymied because of a lack of dual criminality. See Michael A. 
Sussmann, The Critical Challenges from International High-Tech and Compiler Related-Crime at the 
Millennium, 9 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW 455, 463 (1999). 

38. For discussion, see GEOFF GILBERT, TRANSNATIONAL FUGITIVE OFFENDERS IN 
INTERNATIONAL LAW 104-16 (1998). 

39. On June 29, 2001, however, a Draft Convention on Cyber-Crime was adopted under the 
auspices of the Council of Europe, and on September 19, 2001, was approved by the Council of 
Europe's Ministers' Deputies. The Convention will be open for signature by nonmember states 
that participated in the four year drafting exercise, including the United States, which has observer 
status at the Council of Europe. The convention is controversial, and it remains to be seen how 
many states become parties. See Council of Europe, Draft Convention on Cyber-Crime and 
Explanatory Memorandum Related Tliereto, Draft Explanatory Report (June 29, 1001), http://\vw\v. 
conventions. coe.int/treaty/en/projects/nnalcyberrapex.htm. 



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40. Convention for Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 
23, 1971, 24 U.S.T. 565, T.I.A.S. No. 7570, 974 U.N.T.S. 177, 10 INTERNATIONAL LEGAL 
MATERIALS 1151 (1971). 

41. The International Convention for the Suppression of Terrorist Bombing, 37 

International Legal Materials 249 (1998). 

42. See, e.g., id., art. 8. 

43. See, e.g., id., art. 7. 

44. For further discussion, see John F. Murphy & Jon Michael Dumont, The Rendition of 
International Criminals: Hard Cases Make Bad Law, in FESTSKRIFT TILL JACOB W.F. SUNDBERG 
171 (1993). 

45. See id. at 179. 

46. See JOHN F. MURPHY, PUNISHING INTERNATIONAL TERRORISTS 36 (1985). 

47. See 18 US Code § 3181(1998) (listing treaties of extradition) . 

48. The absence of an extradition treaty between the United States and Libya was a 
complicating factor in US efforts to induce Libya to surrender two Libyan members of the Libyan 
secret service who were indicted by a grand jury of the District of Columbia in November 1991. 
See Christopher C. Joyner & Wayne P. Rothbaum, Libya and the Aerial Incident at Lockerbie: What 
Lessons for International Extradition Law, 14 MICHIGAN JOURNAL OF INTERNATIONAL LAW 222, 
250-51 (1993). 

49. See MURPHY, supra note 46, at 43. 

50. See 18 US Code § 3181 and Factor v. Laubenheimer, 290 U.S. 276 287 (1933). 

51. See Sussmann, supra note 37, at 464—65. 

52. Id. at 463-64. 

53. Id. at 464-65. 

54. See GILBERT, supra note 38, at 119-27. 

55. Id. at 119. 

56. Id. at 120. 

57. Id. at 120-21. 

58. Id. at 121. 

59. Id. at 123. 

60. Id. at 126. 

61. Id. at 175-84. 

62. See Joyner & Rothbaum, supra note 48, at 250—51. 

63. As quoted in GILBERT, supra note 38, at 176. 

64. Id. at 177. 

65. European Union Convention Relating to Extradition between the Member States of the 
European Union, Sept. 27, O.J. (C313) 02. 

66. Id. at 179. 

67. See US-Italy Extradition Treaty, Oct. 13,1983, art. IV, T.I.A.S. No. 10837 (entered into 
force Sept. 24, 1984). 

68. GILBERT, supra note 38, at 180. 

69. US-Colombia Extradition Treaty, Sept. 14, 1979, (entered into force March 4, 1982), 
Hein's No. KAV 338. 

70. See GILBERT, supra note 38, at 179-80. 

71. Id. at 180, note 19. 

72. See Colombia Extradites Drug Suspect to the U.S., the Second in Days, NEW YORK TIMES, 
Nov. 26, 1999, at A25. 

73. For discussion, see Argiro Kosmetatos, U.S. -Mexican Extradition Policy: Were the Predictions 
Right about Alvarez?, 22 FORDHAM INTERNATIONAL LAW JOURNAL 1064 (1999); Bruce 
Zagaris & Julia Padierna Peralta, Mexico-United States Extradition and Alternatives: From Fugitive 



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Slaves to Drug Traffickers — 150 Years and Beyond the Rio Grande's Winding Courses, 12 AMERICAN 

University Journal of International Law & Policy 519 (1997). 

74. US-Mexico Extradition Treaty, May 4, 1978, 31 UST 5059; T.I.A.S. No. 9,656, entered 
into force Jan. 25, 1980. 

75. See Kosmetatos, supra note 73, at 1066. 

76. Id. 

77. Id. 

78. See Rodrigo Labardini, Mexico Extradites Major Drug-Trafficker to the U.S. and Recent 
Developments in the U.S. -Mexico Extradition, 15 INTERNATIONAL ENFORCEMENT LAW 
REPORTER 315 (1999). 

79. For an excellent discussion of these issues, see PERRITT, supra note 37. 

80. See Jeffrey C. Matura, When Will It Stop: The Use of the Death Penalty for Non-Homicide 
Crimes, 24 JOURNAL OF LEGISLATION 249, 259 (1998). 

81. See GILBERT, supra note 38, at 155-69. 

82. In the Venezia case, an Italian court suggested that the assurances by the United States that 
the death penalty would not be imposed was an insufficient guarantee, since such assurances by the 
executive could not bind the judiciary. Venezia v. Ministero di Grazia e Giustizia, Corte cost., June 
27, 1996, n. 223, 79 RtVi'sfa Di Diritto Internazionale 815 (1996). For discussion, see Andrea 
Bianchi, case note, 91 AMERICAN JOURNAL OF INTERNATIONAL LAW 727 (1997). 

83. Seejohn Dugard & Christine Van den Wyngaert, Reconciling Extradition with Human Rights, 

92 American Journal of International Law 187 (1998). 

84. Id. at 197. 

85. 161 Eur. Ct. H.R. (ser.A) (1989). 

86. See FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL HUMAN RIGHTS 477 
(2ded. 1996). 

87. 999 U.N.T.S. 171, 6 INTERNATIONAL LEGAL MATERIALS 368 (1967). 

88. 98 INTERNATIONAL LAW REPORTS 479 ( 1993). 

89. As Christine Van den Wyngaert has pointed out, the political offense exception has a 
humanitarian basis in that it is viewed as protection against an unfair trial in the requesting State 
which, as the target of the political crime, might be inclined to function as both judge and jury. 

Christine Van den Wyngaert, The Political Offense Exception to 

EXTRADITION 2 (1980). At the same time, she criticizes this rationale on the ground that it is 
not always true that political offenders are likely to be subject to an unfair and partial trial. Id. at 
4. 

90. Alona E. Evans, International Procedures for the Apprehension and Rendition of Fugitive Offenders, 

[1980] American Society of International Law Proceedings 244. 

91. For further discussion, see MURPHY, supra note 46, at 45-70. 

92. See International Law Association: Helsinki Conference 216, 224 (1996) (Committee on 
Extradition and Human Rights Second Report). 

93. According to the ILA Report, "today the political offence exception is not accepted in a 
wide range of circumstances." Id. at 224. 

94. June 25, 1985, T.I.A.S. No. 12,050, as amended. 

95. See Dugard & Van den Wyngaert, supra note 83, at 190. 

96. Id., noting In re Requested Extradition of Smyth, 61 F. 3d 711,722 (9th Cir. 1995); In re 
Extradition of Howard, 996 F. 2d 1320,1331-33 (1st Cir. 1993). 

97. Id., noting several US and Canadian decisions. 

98. See GILBERT, supra note 38, at 1, quoting THE OBSERVOR, April 29, 1979, at 4. 

99. Quoted in id. at 1. 

100. Id. at 363. 

101. See 30 INTERNATIONAL LEGAL MATERIALS 84 (1991). 



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John F. Murphy 



102. GILBERT, supra note 38, at 363. 

103. There is no discussion of cases outside of Europe in GILBERT, and the doctrine of hot 
pursuit is not even mentioned by Nadelmann in Ethan Nadelmann, The Evolution of United States 
Evolution in the International Rendition of Fugitive Criminals, 25 NEW YORK UNIVERSITY JOURNAL 
OF INTERNATIONAL LAW & POLICY 813 (1993), perhaps the most extensive recent examination 
of methods of rendition. 

104. GILBERT, supra note 38, at 376. 

105. Nadelmann, supra note 103, at 860. 

106. See generally, GILBERT, supra note 38, at 364-77. 

107. See In Re Doherty, 599 Supp. 270 (S.D.N.Y. 1984), appeal dismissed sub nom. United States 
v. Doherty, 615 F. Supp. 755 (S.D.N.Y.1985), affd, 786 F. 2d 491 (2d Cir. 1986). 

108. INS v. Doherty, 502 U.S. 314 (1992). For discussion of this extraordinary case, see Joseph 
Kelley, The Empire Strikes Back: The Taking of Joe Doherty, 61 FORDHAM LAW REVIEW 317 
(1992). 

109. See, e.g., United States v. Reed, 639 F.2d 896, 902 (2d Cir. 1981). 

110. Christopher l. Blakesley, Terrorism, Drugs, International Law, and 
the Protection of Human Liberty 279 (1992). 

111. In the words of the Restatement (Third) of the Foreign Relations Law of the United 
States: "A state's law enforcement officers may exercise their functions in the territory of another 
state only with the consent of the other state, given by duly authorized officials of that state." 

Restatement (Third) of the Foreign Relations Law of the United States, § 
432(2). 

112. UN Charter art. 2(4): 

All Members shall refrain in their international relations from the threat or use of force 
against the territorial integrity or political independence of any state, or in any other manner 
inconsistent with the Purposes of the United Nations. 

UN Charter art. 51: 

Nothing in the present Charter shall impair the inherent right of individual or collective 
self-defense if an armed attack occurs against a Member of the United Nations, until the 
Security Council has taken the measures necessary to maintain international peace and 
security. Measures taken by Members in the exercise of self-defense shall be immediately 
reported to the Security Council and shall not in any way affect the authority and 
responsibility of the Security Council under the present Charter to take at any time such 
action as it deems necessary in order to maintain or restore international peace and security. 

113. The International Court ofjustice, in Nicaragua v. United States, 1986 I.C.J. Rep. 14, para. 
195, stated, "[i]n the case of individual self-defense, the exercise of this right is subject to the State 
concerned having been the victim of an armed attack." 

114. Extraterritorial Apprehension by the Federal Bureau of Investigation, 4B Opinion, Office 
of Legal Counsel 543 (1 980), reprinted in FBI Authority to Seize Suspects Abroad: Hearing Before 
the Subcommittee On Civil and Constitutional Rights of the Committee On the Judiciary, House 
of Representatives, 101st Cong., 1st Sess. 75 (1989). 

115. Authority of the Federal Bureau of Investigation to Override Customary or Other 
International Law in the Course of Extraterritorial Law Enforcement Activities, 13 Opinion, 
Office of Legal Counsel 195 (1989). See FBI Authority to Seize Suspects Abroad, supra note 1 14, at 
2-21, 59-71. 

116. FBI Authority to Seize Suspects Abroad, supra note 114, at 2-21 (Statement of William 
Barr, Assistant Attorney General). 

117. See, e.g., Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and 
International Law, 84 AMERICAN JOURNAL OF INTERNATIONAL LAW, 444, 488 (1990) ("There 

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Computer Network Attacks by Terrorists 



is no suggestion in any of the background of Article 51 or the massive writing on that article that it 
can be used to justify law enforcement directed against individual suspects located in another 
state."). 

118. For a brief discussion of the Younis case, see Nadelmann, supra note 103, at 866. 

119. Mat 870-74. 

120. United States v. Alvarez -Machain, 946 F. 2d 1466 (9th Cir. 1991). 

121. United States v. Alvarez-Machain, 504 U.S. 655 (1992). 

122. Id. at 669. ("Respondent and his Amici may be correct that respondent's abduction was 
'shocking' . . . and that it may be in violation of general international law principles . . . Mexico has 
protested the abduction of respondent through diplomatic notes . . . and the decision of whether 
respondent should be returned to Mexico, as a matter outside of the Treaty, is a matter for the 
Executive Branch.") 

123. See Murphy & Dumont, supra note 44, at 206-08; GILBERT, supra note 38, at 352-60. 

124. See generally, Agora: International Kidnaping, 86 AMERICANjOURNAL OF INTERNATIONAL 
LAW 736 (1992); Murphy & Dumont, supra note 44. Per contra, see Malvina Halberstam, In Defence