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, fr 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)(sxxiii); 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 fele 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 offso that the next

217


Charles J. Dunlap

106. See generally, Donald L. Robinson, National Security, n THE OXFORD COMPANION TO
‘THE SUPREME COURT 574 (1992).

107. Cf. Robert L. Deitz, NSA Obeying the Law, WASHINGTON POST, Dec. 7, 1999, at 30,
ebird.dtic.mil/Deci999/s19991207nsa.htm.

108. See, e.g., Catherine MacRae, Cybercrime Vs Cyber Terrorism, DoD Official Says U.S. Has
Been Victim Of Cyber Crimes, Not Terrorism, DEFENSE INFORMATION AND ELECTRONICS
REPORT, Oct. 1, 1999 (citing James Christy, law enforcement and counterintelligence
coordinator for the DoD Information Assurance Program), www.infowar.com/ mil_c4i/99/
mil_c4l_j.shtml.

109. See supra note 41, and accompanying text.

110, Walter Gary Sharp, Sr., Balancing Our Civil Liberties with Our National Security Interests in
Cyberspace, 4 TEXAS REVIEW OF LAW & POLITICS 69, 72-73 (1999) (emphasis in the original).

111. Id.

112. SeeJim Garamone, Hamre “Cuts” Op Center Ribbon, Thanks Cyberwarriors, American
Forces Information Services, Aug. 1999, | www.defenselink.mil/news/Aug.1999/
108241999_9908241.html, quoting former Deputy Defense Secretary Hamre (‘Several times I’ve
testified and talked about the future electronic Pearl Harbor to the United States.”)

113. Tim Weiner, Author of Computer Surveillance Plan Tries to Ease Fears, NEW YORK TIMES,
August 16, 1999, ebird.dtic.mil/Aug1999/s19990817author-htm. (“{Richard] Clarke, whose
formal title is National Coordinator for Security, Infrastructure Protection and Counterterrorism,
has been warning for years about the threat of an ‘electronic Pearl Harbor. . ..””).

114, 323 U.S. 214 (1944).

115. See WILLIAM REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME
220-243 (1998).

116. See generally, MARTIN VAN CREVELD, TECHNOLOGY AND WAR: FROM 2000 B.C. TO
THE PRESENT (1991).

117. VICTOR DAVIS HANSON, SOUL OF BATTLE: FROM ANCIENT TIMES TO THE
PRESENT DAY, HOW THREE GREAT LIBERATORS VANQUISHED TYRANNY (1999).

118. U.S. Commission on National Security/21st Century, New World Coming: American
Security in the 21st Century, Sept. 15, 1999, www.nssg.gov/Reports/New_World_
Coming/new_world_coming-htm.

119. New Terrorism Vs Individual Liberties, SAN FRANCISCO CHRONICLE, Sept. 22, 1999, at
22, ebird.dtic.mil/Sep1999/s19990923threats.htm.

120. Id.

373


Contributors

State University. He previously served as an editor of the Report of the 15th In-
ternational Seapower Symposium.

Rear Admiral Horace B. Robertson, Jr., JAGC, US Navy (Ret.),
served 31 years on active duty with the US Navy, first as a general line officer
(surface warfare) and later as a law specialist and judge advocate. Included
among his assignments were tours as Commanding Officer of an amphibious
landing ship, Special Counsel to the Secretary of the Navy, Special Counsel to
the Chief of Naval Operations, and Judge Advocate General of the Navy.
Following retirement, Rear Admiral Robertson was appointed Professor of
Law at Duke University School of Law, where he assumed Emeritus status in
1990. He is the editor of The Law of Naval Operations, Volume 64 of the
Naval War College’s International Law Studies (the “Blue Book”) series. He
‘was among a group of academics and naval experts that worked together to
produce the San Remo Manual on International Law Applicable to Armed
Conflicts at Sea. During 1991-92, he served as the Charles H. Stockton Pro-
fessor of International Law at the US Naval War College.

Professor Michael Schmitt is Director, Executive Program in Interna-
tional and Security Affairs and Professor of International Law, George C. Mar-
shall European Center for Security Studies in Garmisch-Partenkirchen,
Germany. He has previously served on the faculties of the US Air Force Acad-
emy and US Naval War College, and currently is an adjunct faculty member of
both the NATO (SHAPE) School at Oberammergau, Germany, and the Inter-
national Institute of Humanitarian Law in San Remo, Italy. Professor Schmitt is
a retired Air Force judge advocate and former Visiting Scholar at Yale Law
School. He is the contributing editor of numerous books, including three in the
Naval War College’s “Blue Book” series, and has authored many articles on in-
ternational law and military operations.

Professor Walter Gary Sharp, Sr., is a Principal Information Security En-
gineer at The MITRE Corporation, McLean, Virginia; an Adjunct Professor of
Law at Georgetown University Law Center; the Editor-in-Chief of the Na-
tional Security Law Report, ABA Standing Committee on Law & National Se-
curity; a member of the Advisory Committee to the ABA Standing Committee
on Law & National Security; a member of the Board of Advisors for Three Oaks
Capital, LLC; and a member of the Executive Advisory Board for the Maryland
Journal of International Law and Trade. He has authored three books on inter-
national and national security law. He retired in December 1997 as a US Marine
Corps Lieutenant Colonel with prior enlisted service and 25 years of active duty.
His assignments included Deputy Legal Counsel to the Chairman of the Joint
Chiefs of Staff and Commanding Officer, Headquarters Battery, 2nd Battalion,

537


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—ts 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.”” 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,
“swartiors,” on behalf ofa special kind of political entity, “States.” The warriors

47


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
tight to individual and collective selfdefense, which predates the Charter.
Others include prohibitions against violating a State’s territorial integrity, and
the primacy of UN Security Council decisions.!°8 Another might be human
tights, although human rights treaties’ derogation clauses reflect traditional
tules of suspension or termination during international armed conflict.!°9 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.1!° 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.!!! 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.!12 The “means at a
neutral’s disposal” principle should be the test for a neutral’s duty for
belligerents’ [W 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.!13

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


Index

and breaches of international law: 101-02
failures of: 93
and Israeli bombing of Iraqi nuclear reactor: 128-29
and law of neutrality: 235, 245, 246
measures that may be taken by: 133, 137
and military use of space: 279, 281, 283
and Protocol I: 225
supervisory powers: 113-14, 127, 132, 133, 140
used to convey the intentions of the major powers: 67
UN Security Council Resolutions
678 (1990): 283
1264 (1999): 283
United States
and control of outer space: 270-72
and cybercrime treaty: 229
extradition to: 332-37
and interference with telecommunications: 284-85
and international agreements on cybercrime: 442, 443
and military uses of space: 265-72, 273-77, 279-82
and Nicaragua case: 81, 83, 130, 135
and noninterference agreement with the USSR: 448
and permissible targets of attacks: 196
position regarding anticipatory self-defense: 130-31
and prohibition on environmental damage: 199
and Protocol I: 225
and reprisals: 200
and right of self-defense: 424-27, 433-34
and Russian draft resolution presented to the UN General Assembly in 1998: 179, 362-63,
388-89, 427-28, 443
and specifically protected objects: 199
Strategic Defense Initiative: 274
and violations of neutrality: 178
US Air Force information operations doctrine: 37, 52, 268
USAF Electronic Warfare Center: 52
US Army information operations doctrine: 37, 51
US Constitution
Fourth Amendment: 329
Fifth Amendment: 342-43
and use of military force for domestic security: 356-57
US Drug Enforcement Agency: 339-40
US Marine Corps and information operations: 52
US-Mexican Extradition Treaty: 335, 339-40
US Navy
and anticipatory self-defense: 131
and information operations: 51-52
rules of engagement: 400

566


Phillip A. Johnson

relevant to State action. Somewhat ironically, the only nation that has made a
prominent effort to address the use of computer network attack by States against
other States has been Russia. In October 1998, Russian Federation Ambassador
Vasily Sidorov made a statement before the UN General Assembly’s Committee
on Disarmament and International Security to the effect that Russia is alarmed
by the serious threats to international peace and security raised by developments
in information technology, and that it is urgent to take preventive measures by
establishing international principles on the use of information technology and
possibly an international monitoring and control regime.* Russia also tabled a
resolution that called for Member States to express their views on the creation of
“Gnternational legal regimes to prohibit the development, production or use of
particularly dangerous forms of information weapons” and the establishment of
“an international system (centre) for monitoring threats pertaining to the secu-
rity of global information and telecommunications systems.”>

No significant support was expressed by other nations for the Russian pro-
posal. Instead, on December 4, 1998, the General Assembly adopted without a
vote a greatly watered-down resolution that called on Member States to “pro-
mote at multilateral levels the consideration of existing and potential threats in
the field of information security,” invited all Member States to inform the Secretary
General of their views on the subject, requested the Secretary-General to sub-
mit a report to the General Assembly in its 1999 session, and included in the
provisional agenda for its next session the topic, “Developments in the field of
information and telecommunications in the context of international security.”®

Undeterred, Russia has continued to pursue its proposal for an “international
legal regime” on “information weapons.” In its submission of views to the Sec-
retary General as invited by the General Assembly resolution, Russia declared
that “information weapons” can have “devastating consequences comparable to
the effect of weapons of mass destruction,” called for the General Assembly to
pass “resolutions on the question of information security with a view to reduc-
ing the threat of the use of information for terrorist, criminal or military pur-
poses,” and proposed the development of a code of conduct for States
concerning international information security that would ultimately be incor-
porated into a multilateral international legal instrument.”

The United States also submitted its views, which generally were that the in-
ternational community should give priority to developing measures to deal with
criminal or terrorist misuse of information technology, and that “it would be
premature to try to formulate overarching principles pertaining to information
security in all its aspects.”8

443


Yoram Dinstein

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 Jaw), 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 ofa 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, ifit 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 toa 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). Itis 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 ofa
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.®6 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 Attack: Developing the Rules of Engagement

the entire effort is imperiled. Inherent risk is already attendant to real world mis-
sions without the injection of an unproven, and possibly speculative system.
Doubt as to legality and ROE would only serve to magnify these concerns.
Compounding this problem may be the short life span of the attack due to rapid
advance in technology and creative enemy adaptation. Even more so than con-
ventional weapons systems, once the impact ofa particular CNA has been expe-
tienced, adversaries can be expected to devise a tailored defense, thereby
limiting future effectiveness.>5 Moreover, the comparatively low cost and global
availability of computer systems and trained programmers enables terrorist
groups or developing nations to enter the realm of information and computer
warfare. All of these factors serve to keep CNA tools underutilized, thereby
foregoing potential military benefit. Doing so deprives a commander of the op-
portunity to observe its effectiveness in training or on lesser targets prior to ap-
plying it to a major target. A successful laboratory demonstration is not likely to
do much to dissuade this opinion. As legal analysis continues to lag technological
breakthrough, we can expect that without great attention, the development of
mission-specific ROE for ever newer computer network attack systems will bea
challenge.

Understanding this background, proponents of the new technology are begin-
ning to realize that not only must they be able to adequately explain and demon-
strate CNA, but they must also ensure that the commander understands how it
functions. Computer network warfare and information operations are upsetting
the existing Westphalian paradigm of warfare upon which traditional ROE and
Jaw of war are based. The very nature of CNA is rapidly changing. For instance,
some suggest that the architecture of CNA is migrating from the traditional model
of “waves” of attack to a model based on a simultaneous “swarming” or overtak-
ing of an opponent’s system. “Swarming occurs when the dispersed nodes of a
network of small . . . forces converge on a target from multiple directions. The
overall aim is sustainable pulsing of a force or fire.”36 Once in motion, swarm net-
works must be able to coalesce rapidly and stealthily on a target, dissever and redis-
perse, and then immediately recombine for a new pulse. In other words,
information-age attacks may come in swarms rather than the more traditional
waves.37 Such a paradigm shift could completely transform the way many ele-
ments of ROE are applied in computer network attack. The concepts of “hostile
act” and “hostile intent,” for example, best fit a linear “wave” model, in which
State action is directed toward another State in waves along a timeline—often be-
coming more permissive or aggressive as time lapses. Crisis war games bear this
out; often, military exercises begin with a “Road to War” prelude of rising politi-
cal tensions that gradually escalate into military confrontation. Then, conflict

404


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

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 (j.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


Computer Network Attack: Developing the Rules of Engagement

Since that time, judge advocates and commanders have made great progress
in integrating ROE with operations. Due to the rapid advance in capabilities
and the explosion of computer networks in civil and military infrastructures
throughout the globe, computer network attack has emerged as one of the few
areas that require more immediate attention. Typically, when any type of CNA
is included in a war game or exercise, a judge advocate is given the task of craft-
ing ROE for their use, usually without operator input or a full understanding of
the mission it is supporting. The problem of lawyer-operator decoupling during
the drafting of ROE is certainly not unique to computer network attack issues.
Nonetheless, the process ofan attorney crafting ROE without the input of other
staff representatives—the intelligence and operations directorates in particu-
Jar—may yield rules that do not serve the commander’s complete package of po-
litical and military goals. In exercises, CNA events often are handled
“notionally.” That is to say the “Blue” or “Red” team will state its intention to
use CNA for an event, applying pre-authorized ROE developed prior to the
game, and they will be informed by the exercise control group that the effort ei-
ther succeeded or failed. Even when a supplemental ROE request is sent up the
chain-of-command to the NCA, there is usually no discussion of the actual
method to be employed, making the event much more of a showcase assump-
tion than an actual exercise. Moreover, neither the Blue or Red force, or even
the control group, has an understanding of the mechanics of the CNA and how
it will operate, particularly the potential collateral effects—expected or unex-
pected. Ideally, there will be a military attorney advising the exercise control
group that can work with the control staff to determine legal effects of CNA.
One part of this analysis that might benefit from more attention is whether CNA
affects persons with protected or special status under international law.

“Train As We Type”

No matter what shape the ROE begin to take, if we do not train like we actu-
ally anticipate utilizing a CNA tool, commanders may not have confidence in its
use. Moreover, decision makers will lack confidence in their authorization. In-
crementally, progress on increased use of CNA in war games and experiments is
unfolding, much like early use of the concept of responding in self-defense based
upon a demonstration of hostile intent. Many might assume this concept has
been around forever—but although it was adopted into early US ROE and ex-
pressed as an inherent right under individual and unit self-defense, this did not
guarantee acceptance or use.*> Discussing the August 19, 1981, shoot-down of
two Libyan Su-22 fighters by US Navy F-14s, Captain Roach observed:

408


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.”®3 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.§+

At least in Europe, however, the situation changed substantially in 1996,
when the European Union concluded a Convention Relating to Extradition of
Nationals.©5 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.®6

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.

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. The treaty was a response to
the inability of the United States to secure the extradition of Colombian

334


An Assessment of International Legal Issues

Department’s official compilation of international agreements to which the
United States is a party. This agreement is probably most accessible in
S. TREATY DOC. No. 99-6. The United States is also a party to the Constitu-
tion and Convention of the International Telecommunications Union of 1992,
which replaces the 1982 agreement as between parties to the 1992 agreement.

The two memorandum opinions of the Justice Department’s Office of Legal
Counsel concerning broadcasting into Haiti are entitled “Applicability of 47
USC Section 502 to Certain Broadcast Activities” (October 15, 1993) and
“Memorandum for the Deputy Attorney General” (July 8, 1994).

The 1884 Convention for Protection of Submarine Cables and associated docu-
ments are published at 24 Stat.989, 25 Stat. 1424, TS 380, 1 Bevans 89, 112, 114.

The major bilateral and regional communications agreements to which the
United States is a party are listed in TREATIES IN FORCE. Many others are
unpublished.

VI. OTHER TREATIES

Citations to the agreements described in this section can generally be found in
the current TREATIES IN FORCE. Pursuant to DoD Directive 5530.3, “Interna-
tional Agreements,” June 11, 1987, a DoD repository and index of unpublished
international agreements relating to military operations and installations is main-
tained in the Office of the Deputy General Counsel (International Affairs).

VIL. FOREIGN DOMESTIC LAWS

None.

VI. IMPLICATIONS OF ESPIONAGE LAW
None.

IX. INTERNATIONAL EFFORTS TO RESTRICT “INFORMATION
WARFARE”

The effort by Russia in the fall of 1998 to get the United Nations to take a firm
stand on restricting information warfare produced only a resolution passed by the

528


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 ofimportance 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 ofan 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 (7th 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 9th
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 few
non-UN members. “As regards UN Members, it stands that Art. 51, including its restriction to the
armed attack, supersedes and replaces the traditional right to self-defence.” Id. at 678.

24. DINSTEIN, supra note 9, at 168.

25, Id. at 160, quoting, in part, E. Jimenez de Arechaga, International Law in the Past Third of a
Century, 159 RECUEIL DES COURS DE L’ACADEMIE DU DROIT INTERNATIONAL 1 at 96
(1978) [other citations omitted].

26. Id. at 163.

142


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 ofa core-meltdown ofa reactor ina
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.8°

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.8!

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.8? 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.®4 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




Yoram Dinstein

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, ifa 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.> 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 ofa CNA, there are also several possible responses available
to State B in the exercise ofits right of self-defense. The most obvious response is
“on-the-spot reaction,”®> 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.5¢ 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 ofa CNA is 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.>7 But there is no
reason why armed reprisals cannot come within the framework of self-defense

107


Phillip A. Johnson

13. See Office Of General Counsel, Department of Defense, An Assessment Of International
Legal Issues In Information Operations, sect. I.B (Nov. 1999) [hereinafter DoD/GC Paper]. This
paper is appended to this volume as the appendix.

14. Id.

15. See, e.g., Nerd World War, ECONOMIST, Oct. 30, 1999 (LEXIS); Robyn Dixon, Chechyns
Use Net in Publicity War with Russia, LOS ANGELES TIMES, Oct. 8, 1999, at A-4; David A.
Fulghum, Telecom Links Provide Cyber-Attack Route, AVIATION WEEK & SPACE TECHNOLOGY,
Nov. 8, 1999, at81; Bob Brewin, Kosovo Ushered in Cybenvar, FEDERAL COMPUTER WEEK, Sept.
27, 1999.

16. Michael E. Ruane, New Computer Technology Makes Hacking a Snap, WASHINGTON Post,
Mar, 10, 1999, at 1.

17. Donn Parker, Automated Security, INFORMATION SECURITY, Oct. 1999, at 32.

18, Treaty on Open Skies, Mar. 24, 1992, S. TREATY DOC NO. 102-37 (1992). The United.
States has ratified this agreement but it has not come into force.

19. Agreement on the Prevention of Dangerous Military Activities, June 12, 1989, 28 I.L.M.
877 (1989).

20. Hague Convention IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907,
36 Stat. 2277; Conventional Weapons Convention, supra note 10.

21. Timothy L. Thomas, Dialectical Versus Empirical Thinking: Ten Key Elements of the Russian
Understanding of Information Operations, JOURNAL OF SLAVIC MILITARY STUDIES, Mar. 1998, at

51.

22, Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or
Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94
U.N.TS. 65; Chemical Weapons Convention, supra note 10, Conventional Weapons
Convention, supra note 10.

23. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for the Protection
of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240. The
United States has signed but has not ratified this agreement.

24, Secretary General’s Report, supra note 7, at 9.

25. Id, at 5.

26. Robert O. Keohane and Joseph S. Nye, Jr., Power and Interdependence in the Information Age,
FOREIGN AFFAIRS, Sept—Oct. 1998, at 93.

27.G.A. Res. 2625, U.N. GAOR, ‘osth Sess., U.N. Doc. A/8082 (1970). SeeDoD/GC Paper,
sect. III. A, supra note 13.

455


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 1 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 outas being among the leaders. William Gibson’s classic work of science fiction, Newromancer
(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 Leam 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, ina 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 www.dtic.mil/jv2010/.

56


Meeting the Challenge of Cyberterrorism

against specified systems that are deemed by statute to be critical to the nation’s
economic and national security interests.111 Whether such an approach is politi-
cally feasible depends upon public perceptions. As already indicated, what role,
ifany, the military should play in defending against domestic cyberattacks is em-
bedded in the larger issue regarding the extent to which Americans believe their
way of life is put at risk by the potential of cyberterrorism.

In this regard, I would add one final note of caution. I have often heard a vari-
ety of senior Pentagon!!? and national security officials! insist that the US is
susceptible to an “electronic Pearl Harbor.” Conjuring up emotional images of
the infamous sneak attack that pulled the US into World War II is certainly an ef-
fective way to hype the interest of persons both in and out of uniform towards
greater vigilance and preparedness. The analogy is one plainly worth pondering,
especially as our society becomes increasingly digitally dependent.

There is, however, a very dark side of the Pearl Harbor story that we should
also keep in mind. Asa result of the fears generated, the US military—acting in a
domestic security role—rounded up thousands of loyal American citizens and
placed them in detention camps, all in the name of responding to a threat to na-
tional security. We know today that the sacrifice of the rights of Japa-
nese-Americans was wholly unnecessary. Although it may be fashionable these
days to say that the roundups were simply racism run amok, those that have actu-
ally read Korematsu v. United States,'14 as well as Chief Justice Rehnquist’s discus-
sion in his recent book!!5 may conclude otherwise. From those sources one can
reasonably conclude that principled men struggling with a real fear of invasion
by an enemy who had already demonstrated his treachery at Pearl Harbor made
what they sincerely believed was a unavoidable decision—however wrong-
headed it appears with the benefit of hindsight.

But, in a sense, the fact that respectable people were nevertheless responsible
for the treatment of Japanese-Americans that we now find so objectionable
should itself give us pause. As we consider the growing involvement of the mili-
tary in countering cyberterrorism, we must never forget that the armed forces is
the least democratic and most unapologetically authoritarian element of our so-
ciety. I hasten to add that this does not presume anything sinister about those in
uniform or those that advocate an enhanced role for the military in fighting
cyberterrorism. I merely submit that in a democracy, and especially American
democracy, the machinations of the truly evil are, somewhat paradoxically, fre-
quently more readily corrected than are the misdirected efforts of well-
intentioned, honorable citizens.

Pearl Harbor and the sacrifices that followed in its aftermath remain a lesson
for us as we consider what role, if any, the military should play in countering

366


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.? 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.”> Undermining this rule
of combatant identification poses obvious dangers to innocent civilians. In
civil war, terrorist tactics against civilians also have been deliberately used as a
powerful advertisement that the established government cannot guarantee

222


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.°?

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
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


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 viewpointis 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

67


Neutrality and Information Warfare

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; sce also
Gabcikovo-Nagymaros Project, supra note 48, at 39 (Article 60 a customary norm); Namibia, 1971
LCJ. 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
unlawfil, e.g., deliberate breach ofa trade treaty to compel 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, ff] 1,3, UN
GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028 (1970), reprinted in 9 LL.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 27 March 1946 (U.S. v. Fr.), 18 R.LA.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 ET AL., 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; SIMMA, supra note 9, at 105; STONE,
supranote 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, Anned 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, The 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
DINSTEIN, supra note 5, at215~16 (reprisals using force admissible in Charter era); LAWRENCE T.
GREENBERG ET AL., 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
Moors, DIGEST § 1090; 2 OPPENHEIM, supra note 5, § 135; RESTATEMENT (THIRD), supra
note 18, § 905 & r.n.8; SIMMA, 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


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 . . . ora
hospital ... oraschool. 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.

3


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 A1.

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, itis 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, supranote 2, at figure
IV-4 and accompanying text. It includes an IO officer from J-3; representatives from]J-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.

218


Phillip A. Johnson

have expressed any interest in negotiating such an agreement, chiefly because
few nations understand information warfare capabilities and vulnerabilities well
enough to determine what principles of international law would best serve their
long-term national interests.

In addition, the fundamental unhappiness felt by many nations as the result of
recent experiences in diplomatic conferences is likely to generate significant
procedural controversies that would have to be settled before negotiating new
multilateral conventions. There are essentially two procedural approaches to the
negotiation ofa multilateral convention, whether through UN channels or ina
special diplomatic conference. The first is a consensus procedure, which is used
in such fora as the Conference on Disarmament. This procedure requires
achieving general acceptance of a negotiating text, usually by a process of tough
bargaining and compromise.

A recent alternative approach to negotiating multilateral conventions has
been the use of majority-rule procedures, which were in essence the proce-
dures used in the negotiations in Oslo that produced the Ottawa Convention
banning antipersonnel landmines and in the Rome Conference that produced
the draft Statute of the International Criminal Court. The great practical ad-
vantage and also the worst defect of such procedures is that they allow the ma-
jority of participating nations to approve a treaty text to which minority
nations have fundamental objections. Such a result affords the organizers of
the negotiations and the members of the majority immediate gratification, but
it produces a treaty that will probably not be accepted by the dissenting States.
In the case of the Ottawa Convention, this process generated a treaty which is
almost meaningless because it apparently will not be ratified by a number of
countries whose military forces and operations are most important to world
affairs, including the United States, Russia, and China. The same is true to a
somewhat lesser extent for the draft Statute of the International Criminal
Court. Ironically, there were opportunities in the negotiations that produced
both of these conventions to arrive at compromises that would have made
them more widely acceptable. In both cases, however, the “like-minded”
groups were not required to agree to these compromises to produce an agree-
ment, and in both they chose ideological purity over wider acceptance. With
these recent debacles in mind, it seems unlikely that there will be much en-
thusiasm in the near future for convening any major new international law-
making diplomatic conferences on any subject.

B. Bilateral Agreements. Bilateral agreements, or agreements among a small
number of nations, are most useful when only a few governments are directly

451


George K. Walker

aircraft follows the route prescribed.” General Declaration, supra note 30, ]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.

91. Compare Hague Air Rules, supra note 30, art. 30, at 212 with AFP 110-31, supra note 30, J
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, {ff 7-8-7.8.1; San Remo Manual, supra note 12, 4
108 & cmt. 108.1; see also supra note 70 and accompanying text. Helsinki Principle 3.2, supraat 504,
might come into play if there is a chance encounter of belligerent forces.

92. ANNOTATED SUPPLEMENT, supra note 5, § 2.4.3.1; see also supra note 71 and
accompanying text.

93. ANNOTATED SUPPLEMENT, supra note 5, 17.9; SAN REMO MANUAL, supra note 12, {f]
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. Sce 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
USS.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 1142. 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 ACLU. Reno, 929 F. Supp 824, 830-38 (E.D.Pa. 1996)., aff'd, 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 Tio Small Nodes, a Mighty Web Has Grown, NEW YORK TIMES,
Oct, 12, 1999, at D1; for historical analyses of the development of computers and the Internet. As
‘World War ll ended, Vannevar Bush suggested the basic idea ofa personal computer; he traced the
history of calculators, discussed speech-controlled 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

261


Computer Network Attack: Developing the Rules of Engagement

Emerging Technologies and War

Over the last decade, information technologies, including computer and
communications systems, have brought about a sea change in the global econ-
omy. Technology has grown from just 6% of the US economy at the beginning
of the 1990s, to over 20% today.! What was once a narrow “technology” sector
within the whole economy has emerged as the “New Economy,” comprised of
that third or fourth of the economy that serves as the source of rapid innovation
and engine of economic growth.” Entire subsectors of the New Economy have
emerged, and whole new industries have grown virtually overnight: photonics,
micro-electrical mechanical (MEMs) devices, wireless systems and specialty
communications semiconductors, and, of course, the Internet, which has be-
come omnipresent throughout the economy. The New Economy has trans-
formed industry data management and storage, manufacturing, accounting, and
inventory management. Many of the same technologies have even more dra-
matically recast military communications, command and control, targeting, lo-
gistics and weapons.> These technological changes are transforming thinking
about military force structure and doctrine, and have opened up computer net~
work attack as a viable instrument of military power.

Military technology displayed by coalition forces during the Gulf War in
1991, particularly those technologies that were used by the United States mil-
itary, ignited broad interest among strategists and policymakers worldwide in
how to best develop or channel the emerging “revolution in military affairs”
(RMA).* RMA, which encompasses technologies that “gather, process and
fuse information on a large geographical area in real time, all the time,”> has
driven the creation of new military capabilities and doctrine based on ad-
vanced concepts and emerging technologies. It grew from Cold War plan-
ning in the West that sought to apply technology as a force multiplier to
counter numerically superior Soviet forces in Europe.® After the Cold War,
RMA began to be seen as a way to ensure Western superiority, or at least pre-
serve military advantage, in a broad variety of post-Cold War conflicts that
might be encountered within the context of a resource-constrained defense
budget environment. Computer network attack is one of the latest and most
advanced manifestations of RMA. With the growth of computer networks
and integrated systems, computers have assumed a central role in enabling
both offensive and defensive military operations. Despite widespread recogni-
tion that the technologies that enable computer network attack are already a
reality, the specific legal and policy considerations that will control their em-
ployment have received scant attention. This is not surprising, since the

396


Information Operations in the Space Law Arena

From the perspective of the UN Charter, these resolutions are merely
non-binding recommendations.*! However, some commentators have asserted
that the “peaceful use” of outer space concept reflects customary international
law, ®? and, to the extent it is referenced, therefore believe the General Assembly
resolutions contain legally binding principles. 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). Alsoa
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.6+ 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.©> The primary catalyst in
forming the Ad Hoc Committee was the US “Strategic Defense Initiative” pro-
gram.® 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.”6” 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

274


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 Il,
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 Américains pourle tragique bombardment par les bombardiers
américains de la ville suisse de Schaffhouse le 1er avril . . . un groupe de bombardiers . . .
n’ont pas pris les larges précautions prévues pour éviter des incidents de ce genre. ... Le
Secrétaire de la Guerre . . .a demandé en méme temps au Secrétaire d’Etat d’assurer votre
Gouvernement que toutes précautions seront prises pour prévenir autant qu'il est
humainement possible la répétition de pareil malheureux accident.

15 DOCUMENTS DIPLOMATIQUES 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 concem 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).

185


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,!75 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). Ifso, 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

294


Computer Network Attacks and Self-Defense

19. See [1976] DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577-578
(E.C. McDowell 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 ofthe 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.

27.1t 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. SeeO. 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 Intemational 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. Itis noteworthy that nowadays there is less to the distinction than meets the eye, inasmuch
as a modem 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 ina CNA. SeeD.C. Gompert, National Security in the Information
Age, 51(4) NAVAL WAR COLLEGE REVIEW 22, 33 (1998).

36. Corfr Channel (U.K. v. Alb.), 1949 LCJ. 4, 22 (merits).

37. See R. Ago, Fourth Report on State Responsibility, [1972] Il YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION 71, 120.

38. L. Condorelli, The Imputability to States of Acts of Intemational 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 of De 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


Douglas S$. Anderson and Christopher R. Dooley

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,!90 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.!5! Despite these “American” views of space law, the Soviet Union
joined INTELSAT in 1991;152 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.!94 In
fact, according toa 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! that specifically prohibits interference with commu-
nication systems, although it certainly is implied throughout the agreement.157
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 ofa military in-
formation operation. Absent some agreement with the members to the con-
trary, a Security Council resolution authorizing “all necessary means” under a

285


Index

United States Navy Regulations (1948): 400

US Space Command: 355, 382, 397

United States Supreme Court: 329, 338, 339-40, 356, 382

United States-United Kingdom Supplementary Extradition Treaty of 1985: 336-37, 338

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001: 343

USA PATRIOT Act of 2001: 343

Vv

Vienna Convention on Diplomatic Relations (1961): 386
Vienna Convention on the Law of Treaties: 127
Virginia: 336

‘Waldock, Humphrey: 126
Walzer, Michael: 364
War, Aggression and Self-Defence, by Yoram Dinstein: 123, 124-25
‘War as a proper response to CNA: 108, 109-10
‘War crimes
certain CNA as: 74, 178, 206
perfidy as: 205-06, 223
World War II: 66, 222
and Yugoslavia: 225
War dialers: 28
‘War industries, targeting of; 222
‘Washington, DC, train wreck in: 42-43
‘Watts, Arthur: 127-28
‘Weapons of mass destruction and international space law: 279-80, 380-81
‘Weapons systems, reliance on precision information: 41, 49-50, 147-48, 220, 224
‘Webster, Daniel: 126, 129, 131, 132, 140
‘Weinberger, Casper: 429
Wilby, Air Commodore David: 364-65
‘Wollenberg, Bruce F.: 360
World War I: 38, 48
World War II: 48, 49, 66, 178, 222
‘Wright, Quincy: 61
‘Wyngaert, Christine Van den: 335-36

Yom Kippur War: 45
Younis, Fawas: 339

567


Contributors

Mr. David M. Crane became the Deputy Assistant Inspector General of the
Department of Defense for Intelligence Review in May of 1997. In January of
1998 that office became a separate organization and Mr. Crane was designated as
the Director, Office of Intelligence Review. A member of the Senior Executive
Service, Mr. Crane’s duties include, among others, advising the Office of the In-
spector General on intelligence policy and programs and in that capacity reviews
the management, policies, procedures, and functions of the intelligence com-
munity within the Department of Defense. Prior to his appointment to his cur-
rent position, Mr. Crane was the Assistant General Counsel, Defense
Intelligence Agency. In government for over 28 years, Mr. Crane served the
majority of that time as an infantry officer and judge advocate in the United
States Army, serving in airborne, special operations, special forces, and intelli-
gence units throughout the world.

Mr. Crane graduated summa cum laude in History with a Bachelor of General
Studies degree from Ohio University in 1972. He received his Master of Arts
degree in International Affairs also from Ohio University in 1973. In 1980, Mr.
Crane received his Doctor of Law (J.D.) degree from Syracuse University. He is
currently completing his Doctor of Juridical Science (S.J.D.) degree at the Uni-
versity of Virginia School of Law.

Professor Anthony D’Amato is the Judd and Mary Morris Leighton Pro-
fessor of Law at Northwestern University School of Law, a position he has held
since 1990. An active litigator in international human rights, he was the first
American lawyer to argue (and win) a case before the European Court of Hu-
man Rights in Strasbourg. Professor D’Amato also litigated the only court of ap-
peals victory against the government in a military service case during the
Vietnam era. He is the author of over 20 books and over 110 articles, including
Analytic Jurisprudence Anthology and Introduction to Law and Legal Thinking.

Professor Yoram Dinstein is currently a Humbolt Fellow at the Max
Planck Institute of Foreign, Comparative and International Law in Heidelberg,
Germany. He was the Charles H. Stockton Professor of International Law at the
US Naval War College (1999-2000). Previously, he served as Professor of Inter-
national Law, Yanowicz Professor of Human Rights, President (1991-98),
Rector (1980-85), and Dean of the Faculty of Law (1978-80) at Tel Aviv Uni-
versity. Professor Dinstein started his career in Israel’s Foreign Service and
served as Consul of Israel in New York and a member of Israel’s Permanent Mis-
sion to the United Nations (1966-70). He is a member of the Institute of Inter-
national Law and the Council of the International Institute of Humanitarian
Law in San Remo. He was among the group of international lawyers and naval
experts that produced the San Remo Manual on International Law Applicable

532


AN ASSESSMENT OF
INTERNATIONAL LEGAL ISSUES
IN
INFORMATION OPERATIONS

SECOND EDITION
NOVEMBER 1999

Department of Defense
Office of General Counsel


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
ofa mouse ata location remote from the target State,> 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,* 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,”>
which, under the widely accepted view, does not come within the prohibition
ofa “threat or use of force” as that term is used in Article 2(4) of the United Na-
tions Charter? Categorization is particularly important in view of Article 51’s
mandate that authorizes resort to the “inherent” right of self-defense only “ifan
armed attack occurs against a Member of the United Nations.””

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

122


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.145

Although there are strenuous efforts in various international fora to resolve
these problems, including the adoption ofa 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. 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 of Justice 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, The Problem of an Intemational 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, SeeJohn 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


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.7!
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 NOTMAR3? (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,’? warning neu-
trals ofhigher risk ifthey “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
NOTMAR.s. (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 ofa
tisk of self-defense responses? This is not a feature of naval warfare but an inci-
dent of self-defense.”4 And because the technology is still emerging, and any
treaty now might be premature,”> down the road when and if the problem set-
tles down, could agreements modeled on the INCSEA agreements’¢ be con-
sidered to minimize confrontation? Longstanding treaties promoting safety at
sea offer another model.7”

Might states proclaim an “Internet Identification Zone” (IIZ) 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, ofa 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

240


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,*? and, at any rate, use
must be in conformity with international law.*3 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 ifa
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 ifit 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 ofa 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 ofa 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 ifa CNA was directed at a target in a belligerent country but
affected a neutral country. Ifsuch an effect was unforeseeable and unlikely, then
it would be purely accidental. However, if such an effect was probable or even

177


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, atix,
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 Staffand 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:

Amongall 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 itselfassumesa 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; HONORABLE 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

318


Index

interference with: 283-86, 380
and precision weapons: 41
vulnerability to attack: 150
Satellite navigation systems: 271-72, 288-89, 292-93, 385-86
Satellite surveillance technology: 271-72, 290-92, 293-94
Satellites, destruction of: 155, 158-59, 380, 381-82
Schacter, Oscar: 129
Schengen Accord of 1990: 337
Schmitt, Michael N.: 88-92, 135-36 138, 139, 141, 326-27
Schwartau, Winn: 377
Schwebel, Stephen: 104, 113-14, 130
Self-defense, right of
and actions against neutral States: 236
against terrorists operating from other States: 108, 433, 434-35
anticipatory: 123-32, 138-41
collective: 112-13, 128
and CNA: 102-15
criteria for a proportional response: 153-55
and customary international law: 109-10, 130, 425, 426
defensive armed reprisals: 10708, 109-10
form of responses to CNA: 107-08, 153-55, 422
and immediacy of response: 109, 110, 128, 426-27
and imminent CNA: 138-40
interceptive: 111, 122-32, 151-55
necessity for the use of force: 109, 128-29, 151, 153-55, 433
need for proportionality in response: 109, 151-55, 434-35
and non-military uses of physical force: 83
principle of sovereignty as a basis for: 125-26
and purpose of response: 155
as response to hostile intent: 131, 137, 151-55, 421-22
restraints on the exercise oft 109-10, 128-29, 131-32, 139-40, 151, 433
and rules of engagement: 421-22, 428-29
and terrorist acts: 103, 104, 108, 111-12, 431-32, 433-34
and UN Charter Article 51: 103, 107-08, 110-11, 123-32
and UN Security Council supervisory powers: 113-14, 127
United States position regarding: 150-51, 424-27, 429, 433-34
Serbia
NATO bombing of the State television station: 196-97, 364-65, 378
NATO intervention in: 93, 223-24
psychological operations against: 85
spamming attack against: 363
spamming attacks protesting US bombing of: 78, 267, 360
US use of CNA against: 74, 79
Settle, Jim: 377
Sharp, Walter Gary, Sr.: 86, 87, 137, 432
Shelton, General Henry H.: 74, 378

561


Index

Outer space
development of treaties regarding the use of; 244, 273, 379
and international law related to information operations: 278-79, 380-82
military use of, 49, 272-77, 279-82, 380-82
principle of free access to: 279, 281-82, 380
prohibition on assertion of territorial claims to: 279, 380
treaties regarding: 273-74, 277, 278-83, 291, 294-95, 380-82, 446-47
UN Committee on the Peacefill Uses of 273-74, 276
US denial of to adversaries: 270-72, 281-82
US domination of 267
US military uses of 265-72
world opinion of the weaponization of: 272-77, 296-98, 447
Outer Space Treaty (1967): 177, 278-81, 282, 283, 291, 294-95, 380, 446-47

P

Packet switching: 9-10
Pan Am flight 103: 333
Password crackers: 27~28
Peacetime Rules of Engagement for US Forces: 400, 409, 428-29
Peacetime Rules of Engagement for US Seaborne Forces: 400, 428-29
People’s Liberation Army (China): 378-79
Perfidy: 171, 205-06, 223, 227, 290, 389, 411
Persian Gulf War: 41, 54, 202, 203, 230, 266, 378, 396
Pike, John: 358
Political costs of using CNA: 293, 296-98
Port scanners: 28
Posse Comitatus Act: 357, 359
Powers, General Tommy: 7-8
Presidential Commission for Critical Infrastructure Protection: 31, 43, 430 [President’s pp43,
430}
Presidential Decision Directives
PDD 62: 430-31, 432, 433, 434
PDD 63: 43, 52, 54, 355, 397, 430-31, 434
Prisoner of war status
civilians who perform CNA: 171-72, 198
computer operators: 172
mercenaries: 207
users of the Internet: 237
Privacy concerns and intelligence operations: 312, 314-15, 329, 342-43, 344, 376
Proportionality, principle of 202-04, 207, 209, 221, 225-26
and military use‘of CNA: 147-60, 166, 410, 411, 412-13
and mission accomplishment: 151, 153, 156-59, 224-25
and self-defense responses: 109, 151, 152-55, 426-27, 429
and the use of information warfare in space: 288, 289

558


Appendix

VI. IMPLICATIONS OF OTHER TREATIES

The State Department’s most recent published list of international agree-
ments to which the United States is a party, TREATIES IN FORCE, January 1,
1998, is 495 pages long. The United States is a party to literally thousands of mul-
tilateral and bilateral international agreements. From their sheer numbers, one
would think it inescapable that lurking somewhere in those agreements are pro-
visions that will affect particular information operations activities. This section
attempts only to highlight certain kinds of “typical” agreements that are likely to
contain obligations relevant to the conduct of information operations.

A. Mutual Legal Assistance Agreements.

Mutual legal assistance agreements (sometimes called judicial assistance
agreements) obligate each party to gather and provide evidence located in its ter-
ritory concerning litigation or criminal prosecutions that occur within the juris-
diction of another party requesting such assistance. The United States is a party
to several dozen mutual legal assistance agreements. Some of these agreements
apply only to the management of particular litigation or to certain types of of-
fenses such as drug trafficking and money laundering. Only a few mutual legal
assistance agreements apply broadly to all law enforcement investigations and
prosecutions. Such an agreement may supply the only domestic legal authority
for the assisting party to investigate offenses that did not occur within its jurisdic-
tion, and it also establishes procedures that expedite the requested assistance. To
be effective in helping to suppress computer crimes and other high-tech of
fenses, mutual legal assistance agreements must either expressly cover such of-
fenses or they must apply broadly to all crimes.

B. Extradition Agreements.

Extradition agreements obligate the parties in certain circumstances to deliver
persons accused of crime to the other party for criminal prosecution. The
United States is a party to more than a hundred bilateral extradition treaties, as
well as to a 1933 Convention on Extradition to which thirteen nations in the
Americas are parties. Ifno extradition treaty is in effect, a national government
often will have neither an international obligation nor the domestic authority to
deliver custody of an individual to another nation for the purpose of prosecu-
tion. It is important that the list of offenses covered by such agreements include
computer intrusions and other high-tech crimes. In addition, the effectiveness

503


Is It Time for a Treaty on Information Warfare?

agree not to develop, possess, or transfer; from the apparent impossibility of
verification; from the fact that governments have no monopoly over the develop-
ment or use of CNA capabilities; and from the fact that CNA capabilities and vul-
nerabilities change rapidly. The development of “hacking” tools is a worldwide
cottage industry, unlike nuclear weapons, tanks, artillery, submarines, ballistic
missiles, or warplanes. Powerful hacker tools are posted on the Internet for use by
all comers.16 Furthermore, many highly capable computer network attack capa-
bilities spring directly from techniques and programs developed for legitimate
purposes.!7 For these reasons, itis difficult to envisage how an arms control-style
agreement could be negotiated anytime in the near future. In addition, any pro-
posal for a nonproliferation agreement might well raise suspicions among the
developing nations that the “have” nations are engaged in a conspiracy to deny
the developing nations the benefits of highly capable information systems.

Strategic arms control agreements often contain provisions to preserve or ex-
pand transparency, such as obligations not to interfere with other parties’ na-
tional technical means of verification. It may not be necessary to negotiate
separate agreements in order to extend the reach ofsuch agreements to ban elec-
tronic means of interference with national technical means of verification. At
most, an agreed interpretation by the parties should suffice. Another similar ex-
tension of arms control principles that might prove to be both useful and attain-
able would be an agreement that the parties will not employ information warfare
techniques in a manner that would interfere with each others’ command and
control of strategic weapons or disrupt missile attack warning systems.

Another theme of arms control agreements has been to create new confi-
dence-building procedures, as in the Open Skies Agreement.'® However, it is
difficult to imagine how a confidence-building agreement could be devised for
computer network attack capabilities, since such an agreement would entail
widespread access by each party to the national computer systems of other parties
that would be exceptionally intrusive without holding out much promise of
effectiveness.

In 1989, the United States and the Soviet Union agreed not to conduct dan-
gerous military activities in peacetime in proximity to the military forces of the
other party.! One of the activities in which the parties agreed not to engage is
interference with command and control networks in a manner which could
cause harm to personnel or damage to equipment of the other party. Since elec-
tronic interference was already the primary mechanism causing interference
with command and control networks, it would appear that this agreement can
be applied to CNA without change. Whether circumstances will make it appro-
priate to enter into similar agreements with other nations remains to be seen.

448


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® 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.”

Although the form and probable effect of warfare is quite different, the same
pattern may be showing itselfin 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; 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-
Jar 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 ifsuch 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? 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 1954.1 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


James P. Terry

Seaborne Forces. These ROE, which until 1986 served as the basis for all com-
mands’ peacetime ROE, were designed exclusively for the maritime environ-
ment. In June 1986, Secretary of Defense Weinberger promulgated more
comprehensive ROE for sea, air, and land operations worldwide.?7 The 1986
Peacetime ROE provided the on-scene commander with the flexibility to re-
spond to hostile intent, as well as hostile acts, and unconventional threats with
minimum necessary force, and to limit the scope and intensity of the threat.
The strategy underlying the 1986 ROE sought to terminate violence quickly
and decisively on terms favorable to the United States. In October 1994, Sec-
retary of Defense Aspin approved the Standing Rules of Engagement for US
Forces (SROE), which significantly broadened the scope of US national
ROE. As established in the SROE, US policy, should deterrence fail, pro-
vides flexibility to respond to crises with options that are both proportional to
the provocation and designed to limit the scope and intensity of the conflict,
discourage escalation, and achieve political and military objectives. The in-
herent right of self-defense establishes the policy framework for the SROE.
These SROE are intended to provide general guidelines on self-defense and are
applicable worldwide to all echelons of command. Providing guidance govern-
ing the use of force consistent with mission accomplishment, they are to be used,
absent superseding guidance, in operations other than war, during transition
from peacetime to armed conflict or war, and during armed conflict.

The expanded national guidance represented in the 1994 SROE, as further
refined in the 2000 SROE, has greatly assisted in providing both clarity and flex-
ibility of action for our theater commanders. The approval by the Secretary of
Defense has ensured consistency in the way all military commanders, wherever
assigned, address unconventional threats such as those posed to our advanced
command and control infrastructure systems when these systems or computer
networks are destroyed, compromised, or altered so as to have a destructive ef-
fect on the national security interests of the nation.

Targeting Considerations

The SROE, as they relate to information warfare, are implemented through
the law of targeting, a subset of the law of armed conflict. The law of targeting is
based upon three fundamental principles. These are:

* The right of States to adopt means of injuring the enemy is not unlimited.

* The launching of attacks against the civilian population as such is
prohibited.

429


Index

“Assessment of International Legal Issues and Information Operations, An,” by the Office of
General Counsel, US Department of Defense: 44, 74, 149, 179, 221, 245, 274, 362, 375-76,
380-81, 383-89, 398, 447

Attorney General of the United States, and prosecution of terrorists: 324-25

Australia: 229, 275, 406-07, 444

Austria: 334

B

Balkan countries, and Army information operations activities: 51
Barr, William: 339
Beirut, Lebanon, bombing of US Marine facilities in (1983): 401
Belarus: 444
Belgium: 337
Belgrade, NATO attack on: 68, 196-97, 223-24, 378
Bilateral treaties
and extradition: 332
and information operations: 386, 451-52
US and Nicaragua: 81
Brazil: 271
Breaches of international law
allowable responses to: 101-02
as different from armed attacks: 100, 101-02
entitlement to reparations for: 101
Bush I Administration: 340

California: 336

Camarena, Enrique: 339-40

Cambrai, Battle of: 402-03

Canada: 229, 271, 275, 336, 337, 338

Caroline case: 108, 126, 128, 140

Cassese, Antonio: 129

Cebrowski, Vice Admiral A. K.: 121, 122-23

Chairman of the Joint Chiefs of Staff Instructions
3210.1, Joint Information Operations Policy: 44
6510.1, Defensive Information Warfare: 42

Chechnya: 190, 447

Chia-Sheng, Major General Chang: 378

Chicago Convention on International Civil Aviation (1944): 385-86

China
and information warfare: 378-79, 411, 421-22, 447
and militarization of space: 274-75
space systems: 271

542


International Law, Cybernetics, and Cyberspace

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 ofa self-contained purposive system. The primary purpose ofa 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 ofall
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.

62


Neutrality and Information Warfare

is nota 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,°® other than applying Charter law,%” 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.°?
There is no special neutrality law like that applying to land, sea, or air warfare.
Any law of neutrality applicable to TW 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. 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 [W? 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
noms, 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

244


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.”1

Counterintelligence played even less of a role and was largely nonexistent
prior to the First World War.?? 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.?3

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.4 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.?> 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.?6 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.?” 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.?8

The Challenges Ahead for 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.?9
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.3° Overlaid on

313


Appendix


Meeting the Challenge of Cyberterrorism

this problem is getting so difficult to rectify that in the not too distant future,
courts will be adjudicating “identity replacement” much as they now do in bank~
ruptcy cases. Still, these cyberthreats are, in my view, properly within the respon-
sibility—and growing capability—of law enforcement agencies to resolve.7°

Avoiding the Cyberterrorist Label

As important as it is to defend against cyberattacks, it is equally important to
ensure that our own security activities avoid accusations that we ourselves are
engaging in cyberterrorism. In a very real sense, the flip side of cyberterrorism is
the use of cybertechniques for legitimate offensive IO. From the military perspec-
tive, the means and methods of the cyberterrorist are not necessarily malum in se;
rather, they must be tested against existing domestic and international Jaw appli-
cable ante bello as well as in bello. Along this line, in 1999 the Office of the DoD
General Counsel issued its first unclassified assessment of the legal aspects of
information operations.’! In other words, to the military way of thinking,
cyberterrorism is objectionable because of its purposes and the manner in which
it is employed (e.g., against noncombatants and noncombatant objects), not,
per se, because of the techniques themselves.

Still, there are many legal and policy questions yet to be resolved. For example,
what constitutes, in the layman’s vernacular, the proverbial “act of war”? That
is, what measure of peacetime cybermanipulation is tolerable before it amounts to
a “use of force” or “armed attack” that plunges a nation into conflict??? While the
definitive answer yet eludes us, there is a growing consensus that once the cyber-
assault creates consequences indistinguishable from that of a traditional kinetic
attack, the legal status of the cyberevent becomes likewise the same.73 Con-
versely, it appears cyberevents that do not reach that threshold would not there-
fore constitute aggression within the meaning of the UN Charter (although they
may be violative of other aspects of international or domestic law).74

Reference to the UN Charter raises the larger issue of the wisdom of various
suggestions for an international agreement addressing cyberterrorism. Some of
these, like the Stanford proposal,”> explicitly exclude “activities undertaken by
military forces ofa State party, or State party activities during armed conflict.”76
Others, like the reported Russian proposal, contemplate banning certain infor-
mation weapons altogether.”7 Many would agree that there is a need for greater
international cooperation to confront the unique issues presented by cyber-
terrorism’8 and that cooperation may need to take the form of an international
agreement. That said, we ought to be cautious about entering into legal regimes
that may unnecessarily hamper what is, after all, an area where the US, as the

362


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.76

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
Jaw 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


Appendix

mission; and (2) There will be no issue of acting under false pretenses by abusing
protected civilian status or by wearing the enemy’s uniform. This will exclude
most information operations activities from being considered espionage in war-
time. Nevertheless, behind-the-lines missions to collect information, or to in~
stall devices that enable the collection of information, may well raise wartime
spying issues.

If caught in enemy territory, a spy can be punished, after an appropriate trial,
under the domestic law of the captor. The punishment can include the death
penalty. The nation on whose behalf the spy was acting, however, will not be
considered to have violated any international legal obligation. In addition, ifin-
dividuals who may have engaged in espionage but successfully complete their
missions (that is, they have returned to friendly lines) and subsequently are cap-
tured while not engaged in acts of spying, they may not be punished for their
previous acts of espionage.

C. Espionage in Peacetime.

Unlike the relatively well developed treatment of espionage under the law of
war, there is very little authority on the treatment of espionage under interna-
tional law in peacetime. There have of course been many domestic criminal tri-
als of peacetime spies in many countries, including the United States. By
contrast, there has been almost no activity concerning peacetime espionage
within the international legal system except for public complaints and the expul-
sion ofimplicated diplomats. This may be because the primary harm done to the
victim nation consists of the fact that certain secret information has been com-
promised, which is a more abstract and indirect type of injury than dead or in-
jured citizens, property damage, or invasions of territory. The lack of strong
international legal sanctions for peacetime espionage may also constitute an im-
plicit application of the international law doctrine called “tu quoque” (roughly, a
nation has no standing to complain about a practice in which it itself engages).
Whatever the reasons, the international legal system generally imposes no sanc-
tions upon nations for acts of espionage except for the political costs of public
denunciation, which don’t seem very onerous.

The consequences for individuals caught spying, however, can be very seri-
ous. Such individuals can be tried for whatever crimes their conduct may consti-
tute under the victim nation’s domestic law, whether charged as espionage, as
unlawful entry into its territory, or as a common crime such as burglary, murder,
theft, bribery, obtaining unauthorized access to state secrets, or unauthorized
computer intrusions. This fact accounts to some extent for the widespread

517


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 NETwork—later renamed DARPANET:
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 NITM 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
aslightly lower than even chance ofsuccess. Failure typically results in termination ofemployment,
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


XIX

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

Brian T. O’Donnell and James C. Kraska

| his chapter offers a framework for military commanders and policy

makers to begin constructing rules of engagement (ROE) for computer
network attack (CNA) during armed conflict, military operations other than
war, and other overt and covert national security activities. Focused on the op-
erational commander rather than the academic, it introduces the legal and policy
considerations surrounding the drafting of ROE for CNA, and discusses the
unique legal issues that arise from CNA within the law of armed conflict. Such
considerations are important for military commanders, their operators, planners,
and lawyers in designing and employing CNA because they serve to facilitate
and provide guidance that operationalizes the concept of computer network
attack—removing it from the realm of speculation and placing it as a tool in the
hands of military commanders. Moreover, since legal and ROE decisions im-
pact the development of tactics and doctrine, and the acquisition and force
structure processes, the discussion is relevant to force providers and trainers, as
well as fleet commanders.


Is It Time for a Treaty on Information Warfare?

that a belligerent’s transportation, utilities, financial system, and research and
development systems become valid military targets because disrupting them
would significantly undermine its military strength. Accordingly, it seems un-
likely that the nations would agree to bestow blanket immunity on such sys~
tems, or that an international agreement could be negotiated that would
advance law of war principles on the targeting of dual-use infrastructures be-
yond their current state. Furthermore, it would be highly counterproductive
to ban CNA against such infrastructures while leaving them open to attack by
traditional military weapons, which would in most cases create a much greater
danger of collateral damage.

Finally, one theme of the Russian initiative fora ban on “especially dangerous
information weapons” has been a push for limitations on psychological warfare.
The Russian statement submitted to the Secretary General inJune 1999 referred
to the threat of “(u)se ofinformation with a view to undermining a State’s politi-
cal and social system; psychological manipulation ofa population for the purpose
of destabilizing society.”24 The Cuban submission also addressed this issue:
“The misuse of information and telecommunications systems and information
resources, especially when such systems and resources are used by some States to
carry out their policies of interference in the affairs of other States, is an infringe-
ment of the sovereignty and independence of the affected States and creates cen-
tres of tension that may pose a serious threat to international security.”25 From.
past experience, it seems highly unlikely that the international community will
be eager to create broad restrictions on propaganda, even as it has been empow-
ered by new and more powerful information technologies. Russia, Cuba, and
other States stung in the past by the Voice of America, Radio Marti, and other
“voices of freedom” will no doubt continue to beat this drum. It seems particu-
larly unlikely that any of the Western democracies will support such calls to im-
pose international legal restraints on the criticism of other societies or
governments. As the authors of a recent article in Foreign Affairs concluded,
“Their societies are familiar with the free exchange of information, and their in-
stitutions of governance are not threatened by it.”26

Forms Of Possible Agreements

A. Multilateral Conventions. Multilateral conventions, especially those to
which substantially all nations become parties, carry the greatest weight of
authority in establishing new international law. It seems extremely unlikely,
however, that a multilateral convention restricting State action relating to
information warfare will be adopted anytime soon. As stated above, few nations

450


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 ARMED 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
1]; 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.TSS. 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 USS.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, Christophe
Swinarki & Bruno Zimmerman eds., 1987) [hereinafter PROTOCOLS ADDITIONAL
COMMENTARY]. The commentary to Protocol Additional II refers back to the commentary to
common Article 3 ofthe 1949 Conventions and to that on Protocol Additional I. Id, para. 4448, fn 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 Development 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 of
combat, occupation, and neutrality. For a discussion of the international instruments which fall
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).

212


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.‘ 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. Ifsuc-
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


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 ofsuch high concern—he’s inside the firewall, inside the secu-
tity. 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 itis
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


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 [W
neutrality principles, it could be argued that the duty ofa neutral to act to pre-
vent belligerent [W warfare from within its territory is not absolute, but condi-
tional on the ability of the neutral to detect [W 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, ifa 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?
must be observed. No distinction is made between publicly and privately
owned cables.® Neutrals’ control of radio broadcasting within their territorial
waters during two World Wars®! 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® or
ships or aircraft that are believed to be aiding the enemy although otherwise ex-
empt® 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

238


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
Intemational Law: Thoughts on a Nonnative 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 & Cl, 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 Erickson, Information Warfare: Hype or Reality? 6 THE
NONPROLIFERATION REVIEW, n.13 (1999).

7. MILITARY AND CAl, 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 Cybenvar, FEDERAL COMPUTER WEEK, Sept. 27, 1999, at 1.

11. 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
Chief 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 “Peacefitl 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.

299


Neutrality and Information Warfare

(This position might be considered in light of the Pact of Paris [1928], outlawing
aggressive war.!! 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.!2 The 1992-96 International Law Association Committee on Maritime
Neutrality studied neutrality, and the 1998 ILA conference accepted the Commit-
tee’s final report.! Individual researchers assert that neutrality remains a valid legal
concept, albeit modified by the impact ofthe Charter and other considerations.!+

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
fo Information Warfare

The Jaw of warfare has little, if any, direct reference to problems of armed
conflict involving [W. The Charter applies across the board to all treaties, and
perhaps customary law as well.!5 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,!6 and some commentators include them among primary sources for de-
riving rules of Jaw,!7 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,!? 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,2° or UN Security Council decisions.” 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.?2 In applying these principles to the

234


Computer Networks, Proportionality, and Military Operations

ofhostile 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. Buta 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 ofa 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
Jast opportunity for the military commander to counter the threat??? If so, the
ingredients are there for hostile intent and the necessity to act.

Ina 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.”?3 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.”2+
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.”?5 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

152


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?”!3! The ability to
delete or alter electronic evidence with the click ofa 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. !3?

As Sussmann notes, the US Code provides for a form of “preservation of evi-
dence” request.!33 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


Douglas S. Anderson and Christopher R. Dooley

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.!46 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.”!47 That opinion, however,
does not address whether “harmful interference” with a member’s
INMARSAT space segment or communication link would constitute a viola-
tion ofits “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

287


An Assessment of International Legal Issues

proven that one nation took over control of another nation’s satellite by elec-
tronic means and caused it to fire its retro rockets and fall out of orbit. In such a
case, the consequences will probably matter more than the mechanism used.
The reaction of the world community to lesser kinds of interference is hard to
predict. For example, if one nation were able by electronic means to suspend the
operations of another nation’s satellite for a brief period, after which it returned
to service undamaged, it seems likely that the world community would consider
such action as a breach of the launching nation’s sovereign rights, but not as a use
of armed force.

One could argue, however, that this argument is unimportant because the
space treaties create a specific obligation not to interfere with the space activities
of other nations, and to pay reparations for any damages resulting from such in-
terference. This argument appears to have considerable force, at least in peace-
time. During an international armed conflict between the two nations
concered, however, the law of armed conflict would apply unless it was
trumped by the principle of noninterference with space systems. Resolution of
this issue depends largely on whether the four space treaties will be considered to
apply during an armed conflict. None of them has any specific provision that in-
dicates whether the parties intended that the agreement apply in wartime.

There appears to be a strong argument that the principle of noninterference
established by these agreements is inconsistent with a state of hostilities, at least
where the systems concerned are of such high military value that there is a strong
military imperative for the adversary to be free to interfere with them, even to
the extent of destroying the satellites in the system. As indicated in the discussion
of treaty law in the introduction to this paper, the outcome of this debate may
depend on the circumstances in which it first arises in practice. Nevertheless, it
seems most likely that these agreements will be considered to be suspended be-
tween the belligerents for the duration of any armed conflict, as least to the ex-
tent necessary for the conduct of the conflict.

If the principle of noninterference is regarded as suspended for the period of
the conflict, it also seems likely that the liability provisions in these agreements
would also be suspended, at least between the parties. This would not, however,
excuse the belligerents from liability to neutral nations if their actions caused
damage to their citizens or property

C. Specific Prohibitions of Military Activities in Space.

There is a popular notion that military activities in space are prohibited—that
space is a place a little closer to heaven into which the nations have agreed not to

494


Information 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 TW and IO than we have at
present.37

Ina 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


Neutrality and Information Warfare

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, 97.3.1.

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
ONTHE LAW OF THE SEA: A COMMENTARY §ff]221.1—221.9(h) (Myron H. Nordquist etal. 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)
(traits 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 ofan 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
US.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.TS. 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 shelfareas,
otherwise subject to the high seas regime. See also JESSUP, supra note 2; JESSUP & DEAK, siipranote
3; W. ALISON PHILLIPS & ARTHUR H. REEDE, 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
UN.TSS. 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


Index

development of: 9-10, 40-41, 219, 422-23
neutral State’s responsibilities regarding the use of: 235-41, 242
possibilities for restricting certain uses of: 239-41, 243-44
potential treaty provisions regarding the use of: 240-41
protection of: 67-69
role of: 41-43, 68-69
vulnerabilities: 10-12, 13

Iran-Iraq Tanker War: 152-53

Traq: 128-29, 202, 203, 224-25, 230, 266

Israel: 45, 86-87, 128-29, 271

Israeli Air Force: 45

Italy: 271, 334

Japan: 229, 271, 275

Jennings, Robert: 104, 113, 128

Jessup, Philip: 233, 245

Johnson, Admiral Jay: 1

Johnson, Loch: 357

Joint Chie& of Staff. See also Rules of engagement; Standing Rules ofEngagement for US Forces.
Peacetime Rules of Engagement for US Forces: 400
Standing Rules of Engagement: 61, 131, 137, 140, 150-51, 152, 153, 155-56, 290, 400-401,

405-06, 414, 428-29

Joint Doctrine for Information Operations: 36, 37, 41, 51, 75-76, 315

Joint Information Operations Center: 355

Joint Task Force-Civil Support: 355-56

Joint Task Force-Computer Network Defense: 267, 355, 397

Joint Task Force-Computer Network Operations: 397

Joint Vision 2010: 41, 50-51

Joint Vision 2020: 50

Judge advocates: 409-10

Just war doctrine: 124-25, 126

Kellogg, Frank: 433
Kellogg-Briand Pact: 125, 127, 425
Kosovo conflict: 147, 149, 223-24, 378, 447
attacks on NATO e-mail system during: 46
NATO bombing campaign: 190, 224, 364
and US use of offensive CNA operations: 74, 79, 356
Kuehl, Daniel: 269-70, 360
Kuhn, Thomas: 40
Kunz, Josef: 123, 127

553


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 ifone of the Parties denies the existence ofa state of war. It makes
no difference how long the conflict Jasts, or how much slaughter takes place.”25
Similarly, Protocol Additional I’s commentary provides that “humanitarian
Jaw . . . 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.?8 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 ofa 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.?° 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

194


James P. Terry

Presidential Decision Directive 62

PDD 62, Combatting Terrorism, is the successor to National Security Deci-
sion Directive (NSDD) 138, signed by President Reagan on April 3, 1984,
which determined that the threat of terrorism constitutes a form of aggression
and justifies acts in self-defense.3° PDD 62 is more expansive in its coverage than
NSDD 138 and addresses a broad range of unconventional threats, to include at-
tacks on critical infrastructure, terrorist acts, and the threat of the use of weapons
of mass destruction. The aim of the PDD is to establish a more pragmatic and
systems-based approach to protection of critical infrastructure and coun-
ter-terrorism, with preparedness the key to effective consequence management.
PDD 62 creates the new position of National Coordinator for Security, Infra-
structure Protection and Counter-Terrorism, which will coordinate program
management through the Office of the National Security Advisor.3!

Presidential Decision Directive 63

PDD 63, Critical Infrastructure Protection, mandates that the National Co-
ordinator, established in PDD 62, initiate immediate action between the public
and private sectors to assure the continuity and viability of critical infrastruc-
tures. The goal established within PDD 63 is to establish a reliable intercon-
nected and secure information system infrastructure by the year 2003. A
National Plan Coordination Staffis tasked with integrating the plans developed
by the various departments of government serving as lead agencies within their
respective areas of responsibility into a comprehensive National Infrastructure
Assurance Plan, overseen by the National Infrastructure Assurance Council.
The Council includes representation from both the public and private sectors.
Under the PDD, the Federal Bureau of Investigation’s National Infrastructure
Protection Center, established in February 1998, will continue to provide a
control and crisis management point for gathering information on threats to crit-
ical infrastructure and for coordinating the federal government’s response.32

Targeting in the Context of PDD 62 and PDD 63

The issue remains, however, should the Critical Infrastructure Plan fail, what
legal remedy can be applied under the law of armed conflict. Ifa response is justi-
fied, what targets in a perpetrator country are proportional to the threat posed by
destruction or compromise of critical infrastructure. Again, our experience in
addressing terrorism must be reviewed. The reason this is necessary is that the
flexibility of the law of armed conflict in addressing unconventional threats pro-
vides far more salient options than domestic law or intelligence law in cases

431


Information Operations in the Space Law Arena

attack is responsible for making this proportionality judgment, the defender has
a responsibility to properly separate military targets from noncombatants and ci-
vilian property.1©5 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.16° 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.1©° 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.!7!
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

290


An Assessment of International Legal Issues

advantage in combat, as well as to broadcast a false report of a cease-fire or
armistice.

+ Neutrality: Nations not engaged in a conflict may declare themselves to be
neutral. A neutral nation is entitled to immunity from attack by the belligerents,
so long as the neutral nation satisfies its obligation not to assist either side. If a
neutral nation is unable or unwilling to halt the use ofits territory by one of the
belligerents in a manner that gives it a military advantage, the other belligerent
may have a right to attack its enemy in the neutral’s territory. There is consider-
able support for the argument that the concept of neutrality has no application
during a conflict in which one of the belligerents is a nation or coalition of na-
tions authorized by the UN Security Council to use armed force to protect or
restore international peace and security. This conclusion is based upon Article
49 of the Charter, which provides, “The Members of the United Nations shall
join in affording mutual assistance in carrying out the measures decided upon by
the Security Council.” In other situations, however, as when a nation uses
armed force in individual or collective self-defense without the benefit of a Se-
curity Council mandate, it would appear that nations not involved in the con-
flict retain the option of declaring themselves to be neutral.

B. Application to Information Operations.

It is by no means clear what information operations techniques will end up
being considered to be “weapons,” or what kinds of information operations will
be considered to constitute armed conflict. On the other hand, those issues may
not end up being particularly important to the analysis of law of war issues. If the
deliberate actions of one belligerent cause injury, death, damage, and destruc-
tion to the military forces, citizens, and property of the other belligerent, those
actions are likely to be judged by applying traditional law of war principles.

* Distinction of combatants from noncombatants: This rule grew up when
combatants could see each other and make a judgment of whether or not to
open fire based in part on whether or not the individual in the sights wore an en-
emy uniform. When the unit of combat came to be a vessel, tank, truck, or air-
craft, it became more important that such vehicles be properly marked than that
their occupants wear a distinctive uniform. 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 re-
quires that lawful combatants be trained in the law of war, that they serve under

470


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”?” 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:

[1]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.”

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


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
toa one. Or, perhaps, change the first one thousand sevens to ones, change the

23


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 notignore 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


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.4+

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 ofinternational armed conflicts, where compensa-
tion is a long-standing requirement.‘¢ 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. Ifso, in principle they would automatically
be illegal weapons‘? 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):

178


Information Operations in the Space Law Arena

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 1976139 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) ofthe INMARSAT Convention!? 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.!43 Much like the Outer Space Treaty, the INMARSAT Conven-
tion, in Article 12(1)(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.”!#4 The new company’s legal obligations arise
out of its Memorandum of Association (MOA) 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

286


Brian T. O’Donnell and James C. Kraska

slowly accelerates from peacekeeping to peace enforcement. The multilateral
US-Thailand-Singaporean series of unclassified COBRA GOLD 00 and 01 exer-
cises were built ftom this model. Crafting suitable ROE for those scenarios ex-
posed the lack of flexibility inherent in a linear focus.

Swarming attacks would pose, simultaneously, a confusing mixture of ac-
tions by a State or non-State actor against a State, with some actions perhaps
tantamount to a “hostile act” or demonstration of “hostile intent.” At the same
time, other actions would fall below that threshold, confounding the develop-
ment of ROE.

The blurring of offense and defense reflects another feature of net-war: it tends to
defy and cut across standard boundaries, jurisdictions, and distinctions between
state and society, public and private, war and peace, war and crime, civilian and
military, police and military, and legal and illegal. A government has difficulty
assigning responsibility to a single agency—military, police, or intelligence—to
respond.38

Ofcourse, this generates confusion over developing a common understanding of
rules of engagement as the DoD vies with international and multilateral organi-
zations, international coalition partners, a host of other federal agencies, state and
local law enforcement, and private business to develop ROE. Lines of authority
will crisscross, and the “operational paradigms of politicians, officials, soldiers,
police officers, and related actors get fuzzy and clash.”3? In particular, the mili-
tary’s ROE, which are developed for military operations, may conflict with
other agencies’ approaches, which are often based on law enforcement. These
fundamental questions must be addressed before mission-specific legal analysis
-can be thoroughly conducted. The essential law of armed conflict and general-
ized military rules of engagement for CNA, however, can be developed asa point
of departure for policy and planning. This will enable commanders to begin a dia-
logue within the defense establishment and with their counterparts outside
the military, facilitating interagency cooperation and action.

The ROE Process

The SROE has added granularity to what many commanders had realized all
along—that they are ultimately responsible for developing and applying ROE.
This responsibility cannot be abrogated to the Staff Judge Advocate or other di-
rectorate. During crisis action planning, the Director of Operations (J3) is key to
generating options and ranking the choices available to the commander. When

405


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, ¢.g., 674 (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. IL.

184


Information Operations in the Space Law Arena

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 diffi-
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
“fife 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

296


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 ifa 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 ina 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 ofa particular manifes-
tation of CNA is physical injury or property damage comparable to that resulting
from military weapons. Ifso, the CNA will be held to fall within the force cate-
gory. Otherwise it will not.*9

‘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 ifand 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


Appendix

negotiations; and (4) concern that the United States should not press ahead-with
testing an anti-satellite system when the nation had yet to decide where its own
long-term interests lie. Concerning this last point, it was obvious that there is a
military interest in being able to defend your own space systems and having the
ability to interfere with your adversary’s, but there was also a contrary consider-
ation that the long-term interests of the United States—as the nation that de-
pends most heavily on space systems—may be better served by promoting the
development of a regime of international law that prohibits any interference by
one nation with the space systems of another, and inhibits the acquisition of the
capability to do so. That fundamental debate has yet to be pursued to a definitive
conclusion.

Later, when public attention was drawn to the possible use of lasers as
anti-satellite weapons, Congress prohibited the use of appropriated funds to illu-
minate any object in orbit with a laser. This restriction was removed in 1995. In
October 1997 the U.S. Army conducted a test in which it illuminated an Air
Force satellite nearing the end of its useful life with the MIRACL laser, located
at White Sands, New Mexico. Despite public announcements that the purpose
of the experiment was purely defensive in nature—to observe the effects of the
laser on the satellite’s optical sensors in order to better protect U.S. satellites from.
deliberate or accidental laser illumination—a public furor ensued. Shortly there-
after President Clinton exercised his short-lived item veto authority to delete
funds from the FY 98 DoD Authorization Act for development of an Army Ki-
netic Energy Anti-Satellite Missile and two other projects that he considered to
be related to space control. Congress approved additional funds for space control
projects in the FY 1999 DoD Authorization Act and urged expenditure of the
FY 98 funds that were restored after the Supreme Court ruled that the item veto
‘was unconstitutional.

At this point, it seems fair to say that the United States has not arrived ata con-
sensus on the fundamental policy issues concerning space control. It seems likely
for the near future that the development of such systems will continue, with re-
newed controversy to be expected as soon as a decision is imminent on the de-
ployment, or even advanced testing, of an operational system. *

E. International Efforts to Control “Weaponization of Space”.

Over the last decade there has been strong support in the UN General Assem~
bly for negotiation in the Conference on Disarmament (CD) of a draft treaty
banning weapons in space. The most recent action by the General Assembly was
its adoption on 4 December 1998 by a vote of 165-0-4 of a resolution entitled

497


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 ofa 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. Ifthe
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)

Avmilitary 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

155


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.°8 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.” 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.”!00 Only effective measures that would not leave the victim State
defenseless can terminate or suspend the exercise of the right of self-defense.!9!

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;! this norm appears to reflect customary international
Jaw.103 CNAs are not incorporated in any present list of proscribed weapons un-
der the lex lata. Evidently, there is a separate issue de lege ferenda 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


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.

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?

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?© To be sure, perhaps special principles analogous to the
passenger and crew safety rule when a merchantman must be destroyed,®” 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® 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. 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, ifa 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?” 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

239


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:
fep://coast.cs.purdue.edu/pub/tools.

10. Quoted it 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: RAND, (1997).
RICHARD BRODIE, VIRUS OF THE MIND: THE NEW SCIENCE OF THE MEME (1996).
ALAN D. CAMPEN AND DOUGLAS H. DEARTH, CYBERWAR 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, AIRPOWER,
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, WHATIS 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


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




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 bornbs.1

he front cover ofa recent Anned Forces Journal has an American soldier on

arope bridge suspended over a chasm with the title “Ready for What?”
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?

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.*
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% Century, drawn along colonial and ideo-
logical lines, is fading into the past. The threats faced by the United States today


Computer Network Attack: Developing the Rules of Engagement

INTERNATIONAL LAW JOURNAL 1935 (1996); Kanuck supra note 8, which were among the first
to address the issue. See also LAWRENCE T. GREENBERGET AL., OLD LAW FOR A NEW WORLD?
‘THE APPLICABILITY OF INTERNATIONAL LAW TO INFORMATION WARFARE (1997), which
‘was republished by the Institute for International Studies, Stanford University, and revised in 1998
by the Institute for National Strategic Studies, National Defense University under the tide
INFORMATION WARFARE AND INTERNATIONAL LAW. Analysis from current or former judge
advocates include Michael N. Schmitt, Computer Network Attack and the Use of Force in International
Law: Thoughts on a Normative Framework, 37 COLUMBIA JOURNAL OF INTERNATIONAL LAW
885 (1999); Roger D. Scott, Legal Aspects of Information Warfare: Military Disruption of
Telecommunications, 45 NAVAL LAW REVIEW 57 (1998); and W. GARY SHARP, SR.,
CYBERSPACE AND THE USE OF FORCE (1999). Within the Pentagon, the most authoritative
address of the issue is a White Paper from 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.

16. The warfighting or operational level is defined as that intermediate level of military
operations between the national or strategic and the individual or small unit tactical level, and
includes, in the US Navy, the numbered fleet, carrier battle groups, amphibious groups and
squadrons, and in the USMC, the malleable Marine Air-Ground Task Force (MAGTF). See
Edward N. Luttwak, The Operational Level of War, INTERNATIONAL SECURITY, Winter
1980-1981, at 61-79.

17. Discussions with Jack Grunawalt, Professor (Emeritus), Naval War College, in Newport,
RI (May 2001); Brian O’Donnell, Rules of Engagement (Oct. 1999-Jun. 2001) (unpublished
Naval War College course material on file with authors).

18. JOSEPH BOUCHARD, THE USE OF NAVAL FORCES IN CRISIS 638 (1990).

19. Id. at 250.

20. US Navy Regulations, 1948, art. 0614:

‘The use of force by United States naval personnel against a friendly foreign state, or against
anyone within the territories thereof, is illegal. The right of self-preservation, however, isa
right which belongs to states as well as to individuals, and in the case of states it includes the
protection of the state, its honor, and its possessions and the lives and property of its citizens
against violence, actual or impending, whereby the state or its citizens may suffer irreparable
injury. In no case shall force be exercised in time of peace otherwise than as an application of
the right of self-preservation as above defined. It must only be used as a last resort, and then
only to the extent which is absolutely necessary to accomplish the end required. It can never
be exercised with a view to inflict punishment for acts already committed.

21. Peacetime Rules of Engagement for US Seabome Forces (1981).

22. Peacetime Rules of Engagement for US Forces (1986).

23. Chairman of the Joint Chief of Staff Instruction (CJCSI) 3121.01, Standing Rules of
Engagement for US Forces (1994).

24. Joint Chiefs of Staff, Joint Pub. 0-2, Unified Action Armed Forces (1995),
www.dtic.mil/doctrine/jel/capstone.htm.

25. USCINCPAC, USCINCEUR, and USCINCCENT have all supplemented CJCS SROE
with theater-specific ROE.

26. Chairman of the Joint Chief of Staff Instruction (CJCSI) 3121.01A, Standing Rules of
Engagement for US Forces (2000) (hereinafter SROE]. The basic instruction is unclassified, but
contains substantive topical classified enclosures.

27. For a discussion of SROE, see R. J. Grunawalt, The JCS Standing Rules of Engagement: A
Judge Advocate’s Primer, 42 AIR FORCE LAW REVIEW 245 (1997).

28. Supra note 17.

416


Contents

Foreword ....

Computer Network Attack: The Operational Context

I CNE and CNA in the Network-Centric Battlespace:
Challenges for Operators and Lawyers
Arthur K. Cebrowski ....... 6. cece eee

Il Technology and Law: The Evolution of Digital Warfare
David Tubbs, Perry G. Luzwick, Walter Gary Sharp, Sr...........

Ill __ A Different Kettle of Fish: Computer Network Attack
Roger W. Barnett... 2... cece cee eee eee eens

IV Information Operations, Information Warfare, and Computer
Network Attack: Their Relationship to
National Security in the Information Age
Daniel T. Kuehl 0.2.0... ace eee eee eee ee

Computer Network Attack: The Legal Context

Vv International Law, Cybernetics, and Cyberspace
Anthony D’Amato ... 2.0.0... eee eee eee eens

VI Computer Network Attack as a Use of Force under
Article 2(4) of the United Nations Charter
Daniel B. Silver... 0.0... cece eee

VII Computer Network Attacks and Self-Defense
Yoram Dinstein .. 0.0.2... eect teens



Index

Abduction: 338-39
Ad Hoc Committee on the Prevention of an Arms Race in Outer Space: 275.
Aeronautics and Space Act of 1958: 281
Air Corps Tactical School: 48
Air Force Doctrine Documents
1: 37
2.5: 268
Air Force Information Warfare Center: 52, 355
Air Force Wargaming Institute: 50
Air warfare
restrictions on: 166
rules: 241-44, 246-47
Alvarez-Machain, Humberto: 339-40
Antarctic Treaty of 1959 as model for space treaties: 276, 280
Anti-Ballistic Missile Treaty (1972): 380-81
Anti-satellite weapons: 277, 381-82
Argentina: 190
Armed attacks
against civilian targets: 106-07
CNA as: 132-38, 140-41, 189, 193-200, 405, 409-10, 422, 431-33, 434, 446
consequences as the basis for identifying: 15, 86, 88-93, 103, 105, 133, 135-38, 140-41, 150,
194, 196-97
criteria for identification as: 84-85.
definitions oft 191-92, 193
differences between incipient kinetic and electronic: 138-40
as different from an ordinary breach of international law: 100-102
as different from an unftiendly act: 100-102
incipient: 110-11, 122~32, 138-40
ona nation’s facilities located outside that nation’s territory: 106-07
and non-military uses of physical force: 83
rules of engagement for the use of CNA during: 395
State practice regarding the meaning of: 191
Arms control treaty for space: 274, 275
Arms reduction treaties: 287, 293-95, 447-48
Army Field Manual 100-6, Information Operations: 37, 51
ARPANET: 9-10
Aspin, Les: 429

541


Neutrality and Information Warfare

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, supranote 5, {]8.1-8.1.3; SAN REMO MANUAL, supra note 12, {]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, 135 L.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, ] 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 of Jurists, 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, 7]
7.3; SAN REMO MANUAL, supra note 12, §{] 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, §{]7.3 n.22, 7.3.2n.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; SIMMA, 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, stipra 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 23241; SCHACHTER, supra note 18, at 152-55; SHARP, stipra 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, supranote 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; DINSTEIN, supra note 5, at 182-87, 190; HENKIN, supra note 20, at 121-22; JESSUP, supra

252


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 ofan 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
ofa 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

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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* 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.5> 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 “peacefull 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.5? However, fundamental rifts soon developed within COPUOS, and
have continued, between space and non-space powers.© 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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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


Jeffrey H. Smith and Gordon N. Lederman

distinction between offensive and defensive information warfare might blur be-
cause an understanding of offensive operations is required for construction of ef-
fective defenses (and vice versa).68 Alternatively, a treaty could conceivably
require certain ident g marks on military information operations so that
countries can identify the source of operations, although the lack ofsuch attribu-
tion characteristics might be a violation of the current law of war concerning
perfidy—meaning that a new treaty is not required for this specific purpose. It
should also be noted that, as a nation advances technologically, it becomes more
vulnerable to technological attack; in other words, the United States could actu-
ally benefit from an international treaty due to its economy’s heavy reliance on
computer infrastructure. This assumes, however, that the treaty is both widely
adopted and enforceable. Also, the treaty should not leave the United States
powerless to defend itself against attacks from terrorists or hackers as opposed to
information operations launched by another State.

The DoD/GC Paper concludes that “[t]here seems to be no particularly good
reason for the United States to support negotiations for new treaty obligations
and most of the areas of international law that are directly relevant to informa-
tion operations.””® It nevertheless observes that one area in which international
agreements would be beneficial is cooperation concerning criminal law, namely
efforts to raise the level of foreign countries’ criminal laws concerning computer
crimes to that recognized by the United States. Although the DoD/GC Paper
states that it is unclear how such a treaty could actually work in practice, it also
speculates that a treaty concerning information terrorism might be useful.

Conclusion

The DoD/GC Paper states that there are no “show-stoppers” in international
law prohibiting US information operations.”° However, obligations conceming
the use of outer space may present problems if a particular information operation
qualifies as a “weapon ofmass destruction.” Furthermore, other obligations under
international law present complications—and opportunities—for the conduct of
US information operations. Decisionmakers must be sure to assess the impact of
international law on each proposed information operation.

Notes

1. WILLIAM SHAKESPEARE, KING HENRY THE SIXTH, act II, scene i, in WILLIAM
SHAKESPEARE: THE COMPLETE WORKS (Alfred Harbage ed., 1969).

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Jeffrey H. Smith and Gordon N. Lederman

1993 radio messages broadcast by the US armed forces to Haitians. DoD/GC Paper, supra note 2.
This opinion does not cover, although it does not necessarily prohibit, such operations by
non-military personnel.

54, United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 19, 1833 U.N.T.S.
397, 404 [hereinafter LOSC].

55. Id., art. 19 (a), (c), (d), and (k).

56. DoD/GC Paper, supra note 2.

57. See LOSC, supra note 54, art. 3, 1833 U.N.T.S. 400.

58. Convention on International Civil Aviation, Dec. 7, 1944, art. 3(d), 61 Stat. 1180, 1181, 15
U.N.TSS. 295, 298 [hereinafter Chicago Convention].

59. Id., art. 89, 61 Stat. 1205, 15 U.N.T.S. 356.

60. Vienna Convention on Diplomatic Relations, April 18, 1961, art. 41, 23 U.S.T. 3227,
3247, 500 U.N.T.S. 95, 120 [hereinafter Vienna Convention].

61. DoD/GC Paper, supra note 2.

62. Id. at 40.

63. Id, at 42.

64. Id. at 43.

65. Id.

66. Id. at 47. Foran analysis of interagency problems associated with US defensive information
operations, see Brian A. Persico, Under Siege: The Jurisdictional and Interagency Problems of Protecting
the National Information Infrastructure, COMMUNICATION LAW CONSPECTUS, Winter 1999, at
153-172. For an analysis of information operations in military operations other than war, see THE
CENTER FOR ADVANCED COMMAND CONCEPTS AND TECHNOLOGY, OPERATIONS
OTHER THAN WAR (OOTW: THE TECHNOLOGICAL DIMENSION) (1995), at www.ndu.
edu/inss/books/ootw/ootwhome. hunl.

67. See Bill Flynt, Threat Convergence, MILITARY REVIEW, Sept—Oct. 1999, at Z-11 (listing
the range of sources of threats, including terrorist and hackers).

68. See generally, DAVID S. ALBERTS, DEFENSIVE INFORMATION WARFARE (1996),
www.ndu/edu/inss/books/diw/index.html. See also ROBERT H. ANDERSON, PHILLIP M.
FELDMAN, ET AL., SECURING THE US DEFENSE INFORMATION POSTURE: A PROPOSED
APPROACH (1999).

69. See DoD/GC Paper, supra note 2.

70. Id.

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Brian T. O’Donnell and James C, Kraska

Itis a common misperception that under the peacetime ROE a commander must
“take the first hit” and cannot act in self-defense until the opposing force has
missiles away. That is not the law and is not required by our general peacetime
ROE.*6

Interestingly, the tools and technologies for initiating computer network
attack are expanding at a rapid pace, unsettling the associated ROE and com-
plicating the ability of attorneys and commanders alike to fashion widely ac-
cepted principles. On the other hand, through the process of incorporating
CNA into realistic war games and experiments, the familiarity of future deci-
sion makers and commanders is increasing. Once CNA is an option available
in time of crisis, deliberate planning during an armed conflict or other military
operation will expand the panoply of available tools for use by the com-
mander. This offers flexibility, asymmetric action, and potentially reduced ca-
sualties among both friendly forces and opponents alike. In turn, it promises
to favorably mold the political outcome.

Disciplining CNA

The surest way to control the use of CNA is to keep its authorization at the
NCA level. Doing so simplifies the decision making process for the commander
in the field, but it does so at the expense of removing a flexible instrument from
his or her inventory. This approach tends to move away from the traditional
American position on ROE construction that empowers military commanders
with all necessary authority to accomplish an assigned mission, so long as the
ROE are not limited by higher authority.4” The goal should be to exercise and
prepare task force and group commanders to engage opposing forces with com-
puter network attack, but to do so according to accepted criteria or rules. Thus,
we need to migrate from an ad hoc approach to ROE for CNA to a more rou-
tine crisis action checklist appropriate for its employment. Any such checklist
would have to be frequently updated to reflect advances in computer technol-
ogy. Only by standardizing rules for initiating ROE will commanders become
comfortable with exercising independent judgment on how, when, where, and
against whom to employ CNA. This requires judge advocates to convince com-
manders, and perhaps innovative technical developers, that computer network
attack is properly analyzed within the traditional ROE and LOAC paradigm
with which our leadership has grown accustomed. Of course, questions re-
main—and the dispositive issue of whether a computer network attack consti-
tutes a “use of force” (and if so, what kind of force)—looms large in the

409


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 ofa crisis or threat ofattack.

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.?
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.!0 Difficult challenges of configuration control, standard com-
puter language, reliability, and interoperability abound.!! 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. !?
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.!3

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.!4 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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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. Ifa rule has a tendency to aggravate disputes, then itis 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.! 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
tule 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.?

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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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 selhelp, 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. Acountability in
Bosnia, 88 AMERICAN JOURNAL OF INTERNATIONAL Law 500 (1994).

5. Anthony D’Amato, The Concept of Human Rights in Intemational 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 ofits 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
theirinformation 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? Letus 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,
Iwould 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

70


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



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 A1. Itappears, however, that what
really was involved was the targeting of the public telecommunications system. While degradation
of the publicswitched 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 considereda
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.

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

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

23. Downs, supra note 13, at 49. .

24. See, .g., YORAM DINSTEIN, 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 (KXV), UN GAOR, 25th Sess., Supp. No. 28, UN Doc. A/8082 (1970).

30. G.A. Res. 42/22, UN GAOR, 424Sess., 734 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 1.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 ofa 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 ofan armedattack, citing the example ofa “complete and
long-term crash of the New York Stock Exchange.” Id. at 117. This conclusion appears highly
debatable.

40. Id. at 101, citing AN 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.

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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.

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.?!

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.? The advance evaluations indicated above are of particular
importance, but it also ought to be possible to call offan 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.?> 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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Brian T. O’Donnell and James C. Kraska

Notes

1, As measured by the technology sector of the Wilshire 5000, often referred to as the Total
Stock Market Index, which is the largest index market in the world and provides a broad measure
of trends in stock prices across the whole of the market. The Wilshire 5000 consists of
approximately 7,000 US-based stocks traded on the New York Stock Exchange, American Stock
Exchange and NASDAQ. See www.wilshire.com.

2. See generally, GEORGE GILDER, MICROCOSM: THE QUANTUM REVOLUTION IN
ECONOMICS AND TECHNOLOGY (1990).

3. See John Arquilla and David Ronfeldt, Cybenvar is Coming!, 12 Comparative Strategy No.
2, 141-165 (1993).

4, Nicholas Lemann, Dreaming About War: Someone in the Pentagon is Staging a Defense
Revolution—and It’s Not the Generals, NEW YORKER, July 16, 2001, at 32. For recent debates on
the revolution in military affairs, see Project on Defense Alternatives, RMA Debate, www.comw.
org/pda/.

5. William A. Owens, The American Revolution in Military Affairs, JOINT FORCE
QUARTERLY, Winter 1995-96, at 37.

6. For example, the deep strike concept of “Follow-on Forces Attack” (FOFA) was intended
to design forces that would interdict Soviet mechanized and armored forces along the entire path of
their attack into Western Europe—beginning at their starting point positioned at barracks and
depots in Eastern Europe and the Soviet Union, throughout the entire course of their transit
westward to the front in Western Europe. See F.W. VON MELLENTHIN ET AL., NATO UNDER
ATTACK 12 (1984). The technologies and doctrine that grew from FOFA were applied with
stunning results during the Gulf War, and are best illustrated by the tremendous devastation of Iraqi
forces fleeing northward from Kuwait along the “highway of death.”

7. Sean P. Kanuck, Information Warfare: New Challenges for Public Intemational Law, 37
HARVARD INTERNATIONAL LAW JOURNAL 272 (Winter 1996).

8. See GEORGE M. CHINN, THE MACHINE GUN: HISTORY, EVOLUTION AND
DEVELOPMENT OF MANUAL, AUTOMATIC, AND AIRBORNE REPEATING 65-68 (1951).

9. GARY F. WHEATLEY AND RICHARD E. HAYES, INFORMATION WARFARE AND
DETERRENCE, 17-22 and 29-30, December 1996. See also Office of the Undersecretary of
Defense for Acquisition & Technology, Report of the Defense Science Board Task Force on
Information Warfare—Defense ([W-D), November 1996.

10. Report of the President’s Commission on Critical Infrastructure Protection: Critical
Foundations Protecting America’s Infrastructures (Oct. 1997).

11, Alan D. Campen, Intelligence is The Long Pole in the Information Operations Tent, Mar.
30, 2000, www.infowar.com.

12. MG James D. Bryan, USA, Commander JTF-CNO, USCINCSPACE, Statement Before
the House Armed Services Committee May 17, 2001, www.-house.gov/hasc/
openingstatementsandpressreleases/107thcongress/01-05-17bryan.html. See also Hon. Linton
Wells II, Assistant Secretary of Defense for Command, Control, Communications and
Intelligence (Acting) and DoD Chief Information Officer, Hearing on Information Assurance,
Statement Before the House Armed Services Committee May 17, 2001, www.house.gov/
hasc/openingstatementsandpressreleases/107thcongress/01-05-17wells.html.

13. Id. .

14. Chairman of the Joint Chief of Staff, Joint Pub. 3-13, Joint Doctrine for Information
Operations, GL-5 (1998), www.dtic.mil/doctrine/jel/operations.htm.

15. See Richard W. Aldrich, The International Legal Implications of Information Warfare, Institute
for National Security Analysis Occasional Paper 9, US Air Force Academy, April 1996, at ix and
6-7; M.E. Bowman, Is Intemational Law Ready for the Information Age? 19 FORDHAM

415


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. See A.D. Softer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW
89, 98 (1989).

88. See J.P. Terry, An Appraisal of Laufiul 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, THELAWS 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


xX

Computer Networks, Proportionality, and
Military Operations

James H. Doyle, Jr.

Acumen 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.! 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.? 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 warship, there are computer chips at the
heart of every weapons system. For example, to track Chinese M-9 missiles fired


Printed in the United States of America

This volume is printed on acid-free paper
by William S. Hein & Co., Inc.

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—-de21

2002002063


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
weapons . . .48

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,5° 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,°! 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, itis 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.5?
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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Wired Warfare: Computer Network Attack and the Jus in Bello

presently solely used for civilian purposes, is a military objective ifthe 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.”®+ 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,”® even if enemy armed forces are the intended “vic-
tims,” is prohibited.® 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,*” 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 ona nuclear reactor could result in a meltdown ofits 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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Brian T. O’Donnell and James C. Kraska

technical capabilities emerging from the laboratories—and the legal architecture
to support them. The advancement of ROE for computer network attack,

which has not kept pace with these developments, should begin to fill this gap.

Determining the ROE process, considerations for creating the parameters of
CNA engagement, and some guidelines for inclusion in operational orders are
especially important for operational commanders executing real world missions.

The commander should be able to understand which computer network and re-
lated military instruments may be used, under what conditions they may be em-
ployed, and to which missions they may be applied. This prevents a commander
from either employing means or methods that lie beyond the scope of his or her
authority, and ensures that the he or she does not unnecessarily limit the applica-
tion of CNA because of confusion over the rules governing its use. There is a
need to discipline and govern the process of development of ROE for CNA.

The National Command Authorities (NCA) have a central stake in overseeing
the process to ensure that the emerging CNA rules of engagement comply with
international law and domestic legislation, as well as remain in concert with na-
tional military policy and national diplomatic and political goals.

For this chapter, we assume that some level of CNA is lawful within the
context of international law, but the more practical question—indeed for
commanders, the greater question—is how best to develop rules of engage-
ment for an actual operation. The objective is to begin to fill in the vacuum
pertaining to the control, application, and employment of CNA at the
warfighting level.16 Does the existing process for developing ROE adequately
accommodate CNA? What can guide commanders, their warfighters, and op-
erational judge advocates in developing rules for computer network attack? Is
this an area best left to policymakers inside the beltway or is there a role for
crafting rules for CNA at the operational level—forward deployed, at sea, or in
the field? This chapter considers the historical basis for ROE, identifies the fac-
tors that fold into ROE development for computer network attack, explores
the considerations that might limit or empower a commander, and suggests an
architecture for designing computer network attack ROE that may be em-
ployed throughout the conflict spectrum. By providing a “navigational chart”
to many of these issues, the goal is to begin to demystify the process for com-
manders and decisionmakers alike.

Historical ROE Development”

Modern ROE have their roots in the naval and maritime tradition. With
the advent of oar and sail, effective central control of a military asset by the

399


Meeting the Challenge of Cyberterrorism

DoD conceded that the benign title of “civil support” and the selection ofa Na-
tional Guardsman instead of a Regular officer as the commander were both in-
tended to quell the concerns of civil libertarians who feared that the “DoD was
out to take over and would trample people’s civil liberties” with the new organi-
zation.31

Although the armed forces were quietly developing an offensive IO capabil-
ity for some time, it has only recently been discussed openly. Offensive IO
embodies activities such as “operations security, military deception, psycho-
logical operations, electronic warfare, physical destruction and special infor-
mation operations, and could include computer network attack.”32 These
types of operations present a plethora of complex legal issues, and practical
problems as well. DoD has admitted to Congress that during Operation
ALLIED FORCE in Kosovo “the conduct of integrated information opera-
tions was hampered by the lack of advance planning and necessary strategic
guidance.”33 In order to better focus the offensive information operations ef-
fort, General Richard Meyers, the commander of USSPACECOM, an-
nounced in January 2000 that effective October 1, 2000 the command will
“pick up the computer network attack mission.”34

The Emerging Policy Issues

Clearly, the US military aims to protect itself against cyberterrorism, facilitate
a broader defense of US interests against that threat, and employ cyber-
technology as a means and method of warfare, albeit for a presumably more
righteous purpose than the cyberterrorist. What kind of policy issues should we
expect to see?

Background

Before considering the specific issues associated with the role of the military
in defending against cyberattacks, it is important to understand that in the US
there is a generally accepted division oflabor on security issues. Asa rule, civilian
Jaw enforcement agencies handle internal security, while the primary purpose of
the military is, as the Supreme Court put it in Toth v. Quarles, “to fight or be
ready to fight wars should the occasion arise”—ordinarily an externally focused
endeavor.*5 The tradition of ordinarily excluding the military from performing
policing duties is traceable to the Founding Father’s deep-seated suspicion of
professional militaries.26 That suspicion resulted from their cognizance of the
excesses of Cromwell’s New Model Army in England, as well as their loathing of

356


An Assessment of International Legal Issues

although the Security Council may, in conformity with the Charter, con-
clude that a determination that an act of aggression has been committed
would not be justified in the light of other relevant circumstances, includ-
ing the fact that the acts concerned or their consequences are not of suffi-

cient gravity.

Article 3. Any of the following acts, regardless ofa declaration of war, shall,
subject to and in accordance with the provisions of Article 2, qualify as an
act of aggression:

(a) The invasion or attack by the armed forces of State of the territory
of another State, or any military occupation, however temporary, re-
sulting from such 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 ofany weapons by State against the territory of
another State;

(c) The blockade of the ports or coasts ofa State by the armed forces of
another State; .
(d) An attack by the armed forces ofa State on the land, sea or air forces,
or marine and air fleets of another State;

(c) The use ofarmed forces of one State which are within the territory of
another State with the agreement of the receiving State, in contraven~
tion 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 perpetrat-
ing an act of aggression against a third State;

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

NOTE: The United States delegation noted that the text of this resolution
reflected hard bargaining among the 35 states that were members of the Special
Committee on the Question of Defining Aggression. After the resolution was
adopted by the General Assembly without a vote, the U.S. delegation stated the
view that the resolution did not establish rights and obligations of states, but that
it was “likely to provide useful guidance” to the Security Council. Translated,

478


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 Inteventionism, FOREIGN
AFFAIRS, May/June 1999, at 2.

52. W. Michael Reisman, Criteria for the Lawful Use of Force in Intemational Law, 10 YALE
JOURNAL OF INTERNATIONAL LAW 297, at 280 (Spring 1985).

97


Appendix

which the ‘peaceful purposes’ principle would be invoked as a reason to deny
service to the U.S. Department of Defense or units thereof.”

C. Assessment.

There are novel features of information operations that will require expan-
sion and interpretation of the established principles of the law of war. Neverthe-
less, the outcome of this process of extrapolation appears to be reasonably
predictable. The law of war is probably the single area of international law in
which current legal obligations can be applied with the greatest confidence to
information operations.

475


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 ofa particular attack. Estimating the effects ofa 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
aselect 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


Wired Warfare: Computer Network Attack and the Jus in Bello

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.”8

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 ofits originator. Because the
code, even ifan 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.7? The plain meaning of “weapon” is something that

201


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.!© It is not necessary here to rehearse the technical
details. Itis 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,” “Trojan horse,” “flying Dutchman,” “time bomb,” “logic
bomb”'8), 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 isan intellectu-
ally interesting question, there is reason to wonder whether, as a practical matter,

77


Meeting the Challenge of Cyberterrorism

85. Clausewitz observed that war is an act intended “to compel our enemy to do our will.” Id. at

7.

86. The author has previously discussed this theme. See Charles J. Dunlap, Jr., Technology:
Recomplicating Moral Life for the Nation’s Defenders, PARAMETERS, Autumn 1999, at 24, 37-38.

87. See generally, William M. Arkin, When Seeing and Hearing Isn’t Believing, WASHINGTON
POST (online edition) February 1, 1999, www.washingtonpost.com/ wp-srv/ national/dotmil/
arkin020199.htm.

88. As quoted by Peter Grier, Information Warfare, ATR FORCE MAGAZINE, March 1995, at 35.

89. See, e.g., Lisa Hoffinan, U.S. Troops Serving Abroad To Try Out Cyber-Voting Option,
‘WASHINGTON TIMES, Nov. 28, 1999, at C4, ebird.dtic.mil/Feb1999/e19990217web.htm.

90. The White House, A National Security Strategy for a New Century 19 (May 1997).

91. See, e.g., R.J. RUMMEL, POWER KILLS: DEMOCRACY AS A METHOD OF NONVIOLENCE
(1997).

92. Huntington’s original thesis (first published in 1993), together with thoughtful critiques
have been published. See COUNCIL ON FOREIGN RELATIONS, THE CLASH OF
CIVILIZATIONS? THE DEBATE (1996). His book-length treatment is entitled THE CLASH OF
CIVILIZATIONS AND THE REMAKING OF WORLD ORDER (1995).

93, The author has discussed this theme on several occasions including: Charles J. Dunlap, Jr.
Preliminary Observations: Asymmetrical Warfare and the Western Mindset, in CHALLENGING THE
UNITED STATES SYMMETRICALLY AND ASYMMETRICALLY: CAN AMERICA BE DEFEATED?
(Lloyd J. Matthews, ed., 1998), carlisle-www.army.mil/usassi/ssipubs/pubs98/
chalngng/chalngng. htm.

94. See UN CHARTER art. 1, para 2. See supra note 72.

95. MICHAEL WALZER, JUST AND UNJUST WARS XViI (2d ed. 1992).

96. See supra notes 84 and 85, and accompanying text.

97. Human Rights Watch (HRW), Civilian Deaths in the NATO Air Campaign, HRW
Report, February 7, 2000, at 22-23, xmail.hrw.org/nato/Matbm200-01.htm.

98. See, e.g., Walter J. Rockler, War Crimes Law Applies.to the U.S. Too, CHICAGO TRIBUNE,
May 23, 1999, ebird.dtic.mil/May1999/e19990525warcrimes.htm.

99. According to the DoD General Counsel, “[w]hen it is determined that civilian media
broadcasts are directly interfering with the accomplishment of the military force’s mission, there
is no law of war objection to using minimum force to shut it down.” See DoD/GC Paper, supra
note 71,

100. See, e.g., Jamie F. Metzl, Information Intervention, FOREIGN AFFAIRS, November/
December 1997, at 15,

101. See William M. Arkin, Changing the Channel in Belgrade, WASHINGTON POST (online
edition), May 25, 1990, quoting Air Commodore David Wilby, www.washingtonpost.com/
‘wp-stv/national/dotmil/arkin052499.htim.

102. See generally, LAWRENCE T. GREENBERG, SEYMOUR E. GOODMAN, & KEVIN J. SOO
HOO, INFORMATION WARFARE AND INTERNATIONAL LAW 36 (1998).

103. With respect to adversary news outlets, the DoD General Counsel states that the “extent to
which force can be used for purely psychological operations purposes, such as shutting down a
civilian radio station for the sole purpose of undermining the morale of the civilian population, is
an issue that has yet to be addressed authoritatively by the international community.” See
DoD/GC Paper, supra note 71.

104. Patrick L. Sloyan, The Fog of War, AMERICAN JOURNALISM REVIEW, June 1999,
ebird.dtic.mil/Jun1999/s19990608fog.htm.

1405. See generally, John Calvin Jefities, Jr. Excluding the Press from Military Operations, in
NATIONAL SECURITY LAW 993 (John Norton Moore, Frederick S. Tipson, & Robert F, Turner
eds., 1990).

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An Assessment of International Legal Issues

for private purposes against the interests of one state from within the territory of
asecond state, the aggrieved state does not generally have the right to use force in
self-defense against either the second state itself or the offending individual.
Even if it were possible to conduct a precise computer network attack on the
equipment used by such individual actors, the state in which the effects of such
an attack were felt, ifit became aware of it, could well take the position that its
sovereignty and territorial integrity had been violated. The general expectation
is that a nation whose interests are damaged by the private conduct ofan individ-
ual who acts within the territory of another nation will notify the government of
that nation and request its cooperation in putting a stop to such conduct.

Only ifthe requested nation is unwilling or unable to prevent recurrence does
the doctrine of self-defense permit the injured nation to act in self-defense inside
the territory of another nation. The U.S. cruise missile strikes against terrorists
camps in Afghanistan on 20 August 1998 provide a close analogy in which the
United States attacked camps belonging to a terrorist group located in the terri-
tory ofa state which had clearly stated its intention to continue to provide a ref-
uge for the terrorists. At some point, providing safe refuge for those who
conduct attacks against another nation becomes complicity in those attacks. Ata
minimum, the offended nation is authorized to attack its tormenters, the terror-
ists. As complicity shades into the kinds of active support and direction that are
commonly called “state sponsorship,” military and leadership targets of the host
state may themselves become lawful targets for acts of self-defense.

Attacks on insurgents or on terrorists and other criminals using a neutral na-
tion’s territory as a refuge may also be justified when the neutral state is unable to
satisfy its obligations. During the Vietnam war, the United States attacked North
Vietnamese military supply lines and base camps in Cambodia after the Cambo-
dian government took the position that it was unable to prevent North Vietnam
from making such use of its territory. This principle might justify using active
defense measures against a computer intruder located in a neutral nation if the
government of the neutral nation declared it had no way to locate the intruder
and make him stop, or ifits behavior made it clear that it could not or would not
act, or even if the circumstances did not allow time for diplomatic representa-
tions to be effective. As an analogy, it seems unlikely that a nation would com-
plain very loudly if its neighbor nation returned fire against a terrorist sniper
firing from its territory.

In summary, the international law of self-defense would not generally justify
acts of “active defense” across international boundaries unless the provocation
could be attributed to an agent of the nation concerned, or until the sanctuary
nation has been put on notice and given the opportunity to put a stop to such

488


Wired Warfare: Computer Network
Attack and the Jus in Bello

Michael N. Schmitt

De« ongoing debates about the existence, or lack thereof, ofa “revo-
lution in military affairs,” it is undeniable that 215 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.”? 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.



Index

defensive: 387-88, 397
definitions of: 8, 36-38, 268, 326, 377~78
and diplomatic personnel: 386
as harmful interference with space activities of other States: 282
as a military discipline: 353, 362, 363, 397, 398-99
military doctrine concerning: 36, 37, 41, 51-52, 75-76, 315, 396-97, 402-05
and outer space law: 268-98 .
and the Outer Space Treaty: 278-81
potential offensive military capabilities: 356, 377, 398-99
from US bases abroad: 387-88
Information superiority
definition of: 37, 41
role in warfare: 2, 50-51, 315-16
and US space policy: 276
Information Technology for the 21st Century (IT-21): 3
Information warfare
definitions of: 8, 35-38, 47-48, 187-88, 269-70, 326, 377, 432-33
international agreements to regulate: 178-79, 362-63, 388-89, 427, 439-53
is it warfare?: 47-50, 54
and the law of neutrality: 233-47
method of analysis of the application of international law to: 234-35, 244-47
and national interests of States: 439-53
Russian draft resolution on: 178-79, 362-63, 388-89, 442-44, 450, 452
threats of: 426
from US bases abroad: 387-88
US operations against Serbia: 378
and the weaponization of outer space: 272-77, 380-82
Infrastructures
computer‘control of: 39, 42
critically in need of protection: 31, 43, 52, 53, 430, 432-33
dual-use navigation systems: 385-86
interconnectedness of military and civilian: 4, 158, 353-54, 412, 449-50
pervasiveness of dual-use systems of: 54, 267
potential for unintended effects during CNA: 158
responsibility for the protection of: 54, 267, 354-55, 359-62, 365-67, 397, 430, 432-33
vulnerability to CNA: 43, 53, 77, 122, 150, 199, 267-68, 327, 328, 354, 366, 377, 397,
421-23, 441 .
INMARSAT Convention of 1976: 16-17, 286-87
INTELSAT Agreement of 1973: 285-86, 291, 293-94
Inter-American Convention on Extradition: 332
International agreements, procedures for negotiating: 451
International agreements on cooperation in responding to CNA: 439, 442-44
International agreements to restrict State information operations, proposals for: 178-80, 362-63,
388-89, 442-44, 445-50
International Civil Aviation Organization: 385-86
International Committee of the Red Cross

551


An Assessment of International Legal Issues

in the introduction to this paper, provisions determined to be incompatible with
a state of armed conflict will be regarded as suspended among the belligerents.
The established practice of nations leaves no doubt that Article 19’s regime gov-
erning innocent passage through the territorial sea will be suspended between
belligerents. The same can be said with a high degree of confidence concerning
Article 113’s protections for submarine cables. Article 109’s provisions for the
suppression of unauthorized radio broadcasting from the high seas are relatively
new, with little established practice. Analytically, there would seem to be little
reason to suspend its application to commercial broadcasters during an armed
conflict, but it would almost certainly not apply to broadcasts from the high seas
conducted by a belligerent for military or diplomatic purposes.

D. Treaties on Civil Aviation.

The United States is a party to a number of treaties concerning civil aviation,
the most significant of which is the 1944 Convention on International Civil Avia-
tion. This treaty, which has more than 180 parties, is often referred to as the Chi-
cago Convention. It establishes the International Civil Aviation Organization
(ICAO) and provides the basic legal framework for international civil aviation.
The Convention does not directly apply to state aircraft, except for the obliga-
tion stated in Article 3(d): “The contracting States undertake, when issuing reg-
ulations for their state aircraft, that they will have due regard for the safety of
navigation of civil aircraft.” This concern for safe navigation by civil aircraft is
also reflected in Article 28, which provides that each party will provide naviga-
tion and communications services as agreed upon through ICAO procedures,
and in Article 37, which provides that the parties will comply with “interna-
tional standards and recommended practices and procedures” on a variety of
subjects including communications systems and air navigation aids. Over the
years the ICAO Council has developed and adopted 18 technical Annexes to the
Chicago Convention. Annex 10, Aeronautical Telecommunications, contains
agreed provisions on aeronautical communications, navigation and surveillance.
While military aircraft are not directly bound by these provisions, their obliga-
tion of “due regard” for the safety of civil aircraft generally includes an obliga-
tion not to interfere with these systems.

The United States is currently engaged in negotiations in ICAO concerning
the role to be played by the Global Positioning System in future navigation sys-
tems for international civil aviation. In particular, an accommodation must be
reached between ICAO’s interest in ensuring that navigation services essential
to the safety of international civil aviation are not interrupted during an armed

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An Assessment of International Legal Issues

IX. INTERNATIONAL EFFORTS TO RESTRICT
“INFORMATION WARFARE”

As soon as the concept of “information warfare” began to receive broad press
coverage, discussion began of negotiating a treaty that would prohibit or restrict
it. A draft treaty text that circulated on the Internet in 1995 said simply, “The
Parties to this Convention agree not to engage in information warfare against
each other.” The first public governmental initiative was a resolution tabled by
Russia in the UN’s First Committee in October 1998 that apparently reflected a
serious effort to get the UN to focus on the subject. The Russian resolution in-
cluded a call for states to report their views regarding the “advisability of elabo-
rating international legal regimes to ban the development, production and use of
particularly dangerous information weapons.” The United States has taken the
position that it is premature at this point to discuss negotiating an international
agreement on information warfare, and that the energies of the international
community would be better spent on topics of immediate concern such as help-
ing each other to secure information systems against criminals and terrorists. So
far there has been little support expressed for the Russian initiative.

There are both similarities and differences between the concept ofa treaty to
ban or restrict information warfare and similar efforts to prohibit “weapon-
ization of space.” One similarity is the political reality that nations lacking a sig-
nificant new military capability that they perceive will be dominated by a few
wealthy and powerful states have a strong incentive to agree to ban or restrict
that capability. There may be an even greater incentive to prevent interference
with information systems, which all nations possess to some degree, than with
space systems, in which only 30 nations are currently active and which are domi-
nated by the United States, Russia, and the European Space Agency. On the
other hand, the number of nations that have any reasonable expectation of de-
veloping their own space control systems anytime soon can be counted on the
fingers of one hand, while anyone with a desk-top computer and an Internet
connection thereby has access both to hacker tools and to a wide variety of im-
portant information targets worldwide. Accordingly, as nations appraise where
their long-term national interests lie, the calculus is quite different as between
international legal restriction of the “weaponization of space” and similar con-
trol of information warfare. With space systems, most states do not expect to be
either an attacker or a defender in the near future. With information systems, all
states can reasonably expect to be both.

As with space control, the United States has not yet addressed fundamental
policy decisions about where its long-term interests lie in connection with the

520




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 ora “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”5; “civilian objects
shall not be the object of attack”¢; “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

193


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.!8 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.”!9 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.2°

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


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.‘ It must be noted, however,
that these intrusive techniques have existed for many years and the oversight
tules 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.4+

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. 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

316


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 ofa 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 and jus in bello 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


Appendix

this statement appears to indicate that the United States does not regard the lan-
guage of this resolution as a completely authoritative restatement of customary
international law, but that its essential concepts are correct. In any event, the
question of what constitutes an “act of aggression” is unlikely to be as useful for
our purposes as is the question, what kinds of information attacks are likely to be
considered by the world community to be “armed attacks” and “uses of force.”
Turning to the question of when force may lawfully be used by nations, the
United Nations Charter provides that in some circumstances the Security
Council may authorize the use of coercive measures, including military force:

* Article 39. The Security Council shall determine the existence of any
threat to the peace, breach of the peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken in accordance
with Articles 41 and 42, to maintain or restore international peace and
security.

* Article 41. The Security Council may decide what measures not involving
the use ofarmed force are to be employed to give effect to its decisions, and
it may call upon the Members of the United Nations to apply such mea-
sures. These may include complete or partial interruption of economic re-
lations and of rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations.

* Article 42. Should the Security Council consider that measures provided
for in Article 41 would be inadequate or have proved to be inadequate, it
may take such action by air, sea, or land forces as may be necessary to main-
tain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of
Members of the United Nations.

Perhaps most significantly, the Charter also provides in Article 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 measures necessary to maintain interna-
tional peace and security.”

Read together, these provisions of the Charter and the related General As-
sembly resolutions provide a myriad of terms and concepts concerning prohib-
ited uses of force among nations, including the threat or use of force, acts of
aggression, wars of aggression, the use of armed force, acts of armed force,

479


Appendix

Cables. The first day of the war, the British Navy pulled up and cut the five major
submarine cables serving Germany. Throughout all the wars of this century,
communications facilities of all sorts have been regarded as priority military tar-
gets. Since some of the parties to the ITC and other multilateral communica-
tions conventions are likely to be neutrals in armed conflicts between other
nations, the result may become somewhat complicated. Most ITC obligations
will be considered to be suspended among the belligerents, but they will remain
in effect between each belligerent and the neutral parties to the agreement, as
well as among the neutral parties.

Note: The issue of the extent to which a neutral nation or an international
communications consortium may continue to provide communications services
to a belligerent is discussed in the law of war section of this paper.

The United States has negotiated bilateral communications only selectively,
primarily because the ITC and the ITU provide a framework for handling most
international communications issues. As one might expect, the need for bilateral
communications agreements has arisen for the United States primarily with
Canada and Mexico, because of the potential for interference in broadcast com-
munications across our common borders. A number of bilateral communica-
tions agreements have also been negotiated between the United States and
nations where U.S. military forces are stationed. There is a potential for such bi-
lateral agreements to either restrict or facilitate information operations by U.S.
military forces. The agreements concerned should be consulted when such an is~
sue arises.

B. Domestic Communications Law.

The ITC and its predecessors obligate each Member nation to suppress acts by
individuals or groups within its territory that interfere with the communications
of other members. In partial satisfaction of this obligation, in 1934 Congress en-
acted 47 USC 502, which provides, “Any person who willfully and knowingly
violates any rule, regulation, restriction, or condition . . . made or imposed by
any international radio or wire communications treaty or convention, or regula-
tions annexed thereto, to which the United States is or may hereafter become a
party, shall, in addition to any other penalties provided by law, be punished,
upon conviction thereof, by a fine of not more than $500 for each and every day
during which such offense occurs.” In October 1993, when the United States
was considering broadcasting radio messages to the people of Haiti supporting
the return of democracy in that nation, the Office of Legal Counsel of the De-
partment of Justice concluded in a written opinion that 47 USC 502 would not

501


Phillip A. Johnson

3. Law of War Agreements. Existing law of war treaties ban the use in interna-
tional armed conflicts of weapons such as expanding bullets, barbed weapons,
and projectiles filled with glass on the basis that, used as intended, they are likely
to cause unnecessary suffering.20 The methods and means of information war-
fare do not generally raise such considerations, since few information warfare
techniques cause any direct personal injury or impairment to health. An odd and
isolated exception is a report by Russian authorities that they have discovered a
computer virus called “666” that displays certain light patterns on a computer
screen that cause the operator to lapse into a coma. Fifty computer operators are
reported to have died as a result of exposure to the “666” virus.?! With this bi-
zarre exception, information warfare “weapons” are not generally understood
to cause unnecessary suffering in the same way as do weapons that have been
banned for this reason.

The law of war also bans the use in international armed conflict of weapons
that are indiscriminate, i.e., they cannot be controlled and directed only against
authorized military targets. Poison gas and non-self-destructing/non-self-disabling
antipersonnel landmines are examples of weapons that have been banned for this
reason.22 We have already seen self-propagating computer “viruses” and
“worms” that clearly foreshadow the issue of malicious logic that runs amok
through military and civilian computer systems. Again, however, malicious
computer logic is unlikely to directly cause injury and death. Furthermore, any
attempt at drafting an international agreement that would ban indiscriminate in-
formation warfare “weapons” is likely to founder on the difficulty of defining
them. It seems unlikely that any resulting agreement would advance interna-
tional law beyond the principle that “information weapons,” like all weapons,
must be discriminate.

Law of war agreements have also taken the tack of banning or restricting
attacks on certain targets, such as medical facilities, prisoner of war camps, and
cultural property.?3 These existing agreements already protect these facilities
from attack by any means, including information warfare techniques. It might
be argued that infrastructures that are heavily relied upon for the health and
safety of the civilian populations and that are particularly vulnerable to CNA
should be specifically protected from such attack by international agreement.
Examples might be public utilities, transportation, communications, financial
networks, emergency services, and universities. The problem is that such sys-
tems may in certain circumstances be legitimate targets of attack. This may be
the case when the system is being used to provide direct support to military
operations, as when a single electric power net is used both for military and
civilian purposes. It may also be the case, in a long and protracted conflict,

449


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.8° The National Space Policy also makes
clear what has been obvious for quite some time—that access to and use of space
“4s central for preserving peace and protecting US national security.”8!

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,”8? and maintain the capabilities to execute traditional mission areas
of space support, force enhancement, space control, and force application.53
The use of information operations to protect our communication systems and.
data links, while being able to interfere with the communications and data ofad-
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.8° 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

276


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

84


Information Operations in the Space Law Arena

directly oversees the communications satellite industry, arguably the most im-
portant sector of outer space activity.!2! A specialized agency of the United Na-
tions since 1945,!22 it has been used by the UN to promote international
cooperation in space!?3 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.!24 The convention defines “harmful interference” as “[iJnterference
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.”!25 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 ofa 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.!?8 Thus, the only time the provisions in the ITC would apply

284


Louise Doswald-Beck

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, 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.*3 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:

173


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.
Ifan aircraft, once notified, refuses to comply, a belligerent may fire on it.°! 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.5?
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 ofa 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.%4

Might States proclaim an “Internet Identification Zone” (IZ) for certain
parts of the Internet spectrum, analogous to the ADIZ?%> 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

243


Neutrality and Information Warfare

1992); OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 50-55
(1991); of ANNOTATED SUPPLEMENT, supra note 5, at xacxvii-xccxviii, §]5.4-5.4.2 (recognition
of custom, treaties).

19, Nearly all agree that qualified scholars are only a secondary source, orare evidence of rules
oflaw. I.CJ. Statute, art. 38(1)(4); 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 sxvii-xxxviii, §f] 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.
LCJ. 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 CJ. 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, Intemational Law and the Use of Force in Peacetine: 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 Fore in the Persian Gulf War (Part 1), 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, supranote 14,
at 127-30; James McHugh, Forcible Self-Help in International Law, 25 NAVAL WAR COLLEGE
REVIEW 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 ef 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 REVIEW 89, 101 (1992); Robert F. Tumer, State Sovereignty,
International Law, and the Use of Force in Countering Low-Intensity Aggression in the Modem 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; DINSTEIN, 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, 171 (1979); 2 OPPENHEIM, sipra note 5, § 52aa, at 156;

250


Computer Networks, Proportionality, and Military Operations

However, in most cases, these effects would probably not be considered exces-
sive in the light of the military advantage anticipated.

In the case ofa 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 ata
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 ofa 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

158


Jeffrey H. Smith and Gordon N. Lederman

* Any act of propaganda aimed at affecting the defense or security of the
coastal State; ...

* Any act aimed at interfering with any systems of communication or any
other facilities or installations of the coastal State[.]>>

While the DoD/GC Paper observes that LOSC provisions “have the poten-
tial to affect only a narrow category of information operations,”>© a literal read-
ing of the LOSC seems to point to information operations falling under its
purview. Ship-bore information weapons could be classified as “prejudicial to
the peace, good order or security of the coastal State” because information oper-
ations are “aimed at interfering with particular systems of communication or
other facilities or installations of the coastal State.” The Convention establishes a
nation’s maximum territorial sea as twelve miles from the nation’s coast, signifi-
cantly smaller than the 200 miles that particular nations claim.57 Thus, an obvi-
ous remedy for any legal problems with ship-borne information operations is for
ships wielding information weapons “against” or otherwise “aimed at” a coastal
nation to stay outside of the twelve-mile limit. It should be noted that the LOSC
does not expressly address whether its obligations are enforced during an inter-
national armed conflict.

Treaties on Civil Aviation

Article 3(d) of the 1944 Chicago Convention, which established the Interna-
tional Civil Aviation Organization (ICAO), states, “The contracting States un-
dertake, when issuing regulations for their state aircraft, that they will have due
regard for the safety of navigation of civil aircraft.”58 The DoD/GC Paper ob-
serves that, as a result, military aircraft have an obligation of “due regard” for the
safety of civil aircraft, meaning an obligation “not to interfere with the systems”
of civilian aircraft, but does not elaborate on this obligation.

A question thus arises concerning the use of information warfare against
particular navigational systems or other dual-use systems, i.e., used both by
military and civilian aircraft. For example, a particular navigational satellite
might be used both by military and civilian aircraft, or a particular civil-
ian—military airport might use the same radar for both military and civilian
flights. An information operation against such computer equipment with the
aim of disrupting military operations could impact civilian aircraft as well,
leading to a violation of civil aviation treaty obligations. The DoD/GC Paper
notes that the Chicago Convention specifically provides that the treaty does
not “affect the freedom of action of any of the contracting States affected,

385


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 Jaw’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.!9 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

229




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.>

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.© Throughout history, State actors have been
collecting information on the intentions, capabilities, and policies of both
friendly and rival States.”

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.? The mission was clear and the com-
munity organized itself accordingly to provide critical information to the Na-
tional Command Authorities!? on Soviet capabilities and intentions.!! This
organizational model, however, may no longer be valid.!2

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.!3 At
times this was at the expense of the other intelligence collection methods such as
human-source intelligence (HUMINT). In the asymmetric world of the 21st
Century, HUMINT and open source intelligence (OSINT) will play a key
role.!5 This role will not change in the dimension of cyberspace and computer
network attack or defense.!® Additionally, the computer will become a useful
tool for an intelligence operative or analyst to use.!7

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.!9 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.2°

312


Index

Commentary to the 1949 Geneva Conventions: 164, 191
Commentary to the 1977 Additional Protocols: 191, 196
and permissible targets of attacks: 196
International Convention for the Suppression of Terrorist Bombing: 331
International cooperation in the enforcement of domestic criminal law: 324
International Court of Justice
and Caroline case: 108, 126, 128-29, 140
Corfit Channel case of 1949: 103-04
and customary international law: 93, 99
Nicaragua case: 81, 83, 99, 104, 109, 112-14, 130, 135
Nuclear Weapons Advisory Opinion of 1996: 103, 109, 113, 189
and UN Charter Article 2(4): 78, 81, 82, 83
and UN Charter Article 51: 103
International Covenant on Civil and Political Rights: 336
International Criminal Court: 178
International criminal court, Rome negotiations for a permanent: 225-27
International criminal law: 323-44
International Criminal Tribunal for the Former Yugoslavia: 104, 226
International humanitarian law. See also Law of Armed Conflict.
and CNA: 163-65, 188-93
consequences as basis for applicability oft 192-93
purposes of: 191-92
and UN Charter Article 2(4): 164-65
International Institute of Humanitarian Law: 452-53
International law
and equality of kinetic and electronic means when results are the same: 108
evolution of regarding activities in cyberspace: 17-18
importance of communication in: 62-65, 68
purpose of: 60, 61, 62
structure of: 60-62
International Law, by Lassa Oppenheim: 173-74
International Law Association
Committee on Maritime Neutrality (1992-96): 234
conference (1998): 234
International Law Commission: 99
International law of human rights: 66
International Maritime Satellite Organization: 286-87
International space law: 278-90, 380-82
International Telecommunications Convention: 283-85, 291, 292-93, 294-95, 382-84
International Telecommunications Satellite Consortium (INTELSAT): 285-86
International Telecommunications Union: 283-84, 291, 382-84
Internet
and availability of tools for attacking networks: 27, 28
and civilian access to information: 68
cooperation between States and service providers: 229-30
costs of security features: 10-11

552


Anthony D’Amato

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 ofa 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. Asa 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 ifM recruits his fellow tradesmen to help in the enterprise.

63


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 ofa 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. 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 ofa military character,” as well as the
tight of evacuation of children and aged persons from encircled areas.’ 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 ofits 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 intérnational criminal court.

Article 51(b) of Protocol I deems an attack “indiscriminate” ifit “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 ofan “overall” military campaign—allowing
military commanders and operators to seek more distant, as well as immediate
objectives.? A military advantage, for example, need not be “temporally or geo-
graphically related to the object of the attack.”1° In addition, the ICC treaty
notes that the military commander breaches a criminal rule only where the

225


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.%? 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.%? 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. 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.

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.” 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.”*” 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

206


An Assessment of International Legal Issues

apply to the actions of U.S. military members acting on behalf of the President
pursuant to the President’s foreign affairs and Commander-in-Chief authority.

C. Assessment.

International communications law contains no direct and specific prohibi-
tion against the conduct of information operations by military forces, even in
peacetime. The established practice of nations provides persuasive evidence that
telecommunications treaties are regarded as suspended among belligerents dur-
ing international armed conflicts. Domestic communications laws do not pro-
hibit properly authorized military information operations. Accordingly, neither
international nor domestic communications law appears to present a significant
barrier to information operations by U.S. military forces.

502


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 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


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, ifit violates the
tule 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,
ora 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.!7 To complicate matters, certain
statements of understanding indicate that the attack is to be considered as a
whole when making the evaluation.8 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 bello 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


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-
jan 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.10

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.193 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

208


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.? In 1993 the Department of Defense
published an official definition for the term, ina 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 TW and IO will remain in effect for some time longer.>

The present definitions leave much to be desired, however, ifone 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


Yoram Dinstein

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.

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 ofa core-meltdown ofa reactor

ina 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.*9 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).

105


Index

Military support operations, reliance on computer technology: 150, 220
Milosevic, Slobodan: 74, 80, 223-24, 363

Misinformation, deliberate planting of: 76, 79, 85, 171, 205-06, 269-70, 336, 440
Misuse of protective codes and signals: 206

Mobile communications: 286-87

Moon Agreement of 1979: 380

Mutual assistance treaties: 113

Mutual Legal Assistance Treaties: 340-42, 343

N

Nairobi Convention (1982): 16
National Command Authorities
and Iran-Iraq Tanker War: 152-53
and military intelligence operations: 312, 313-14
and planning for the use of CNA: 399, 409-10, 428
and supplemental rules of engagement: 406-07, 408
National coordinator for infrastructure protection: 43, 431
National Coordinator for Security, Infrastructure Protection, and Counter-Terrorism: 330
National Defense University, Institute for National Strategic Studies: 136
National Infrastructure Assurance Council: 431
National Infrastructure Assurance Plan: 431
National Infrastructure Protection Center: 73, 355, 431
National security
and commercial availability of satellite reconnaissance data: 271~72
and intelligence operations: 311-17
and space denial: 270-72
and threats from cyberspace: 311-17
National Security Act of 1947: 314
National Security Advisor, Office of the: 431
National Security Agency: 355, 421
National Security Council: 43
National Security Decision Directive 130, US International Information Policy: 38
National Security Space Guidelines: 276
National Security Strategy (December 2000): 52
National Space Policy: 276
Naval Information Warfare Agency: 51-52
Naval warfare
and neutral States: 176, 237-41
tules of: 237, 244-45, 246-47
Necessity
and mission accomplishment: 151, 156-59, 288, 289-90, 410
and self-defense response: 109, 128-29, 151, 152, 153-55, 426-27, 433
Netherlands: 337
Network-centric warfare: 2-3, 51, 159

556


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
ofaviation technology in the 1930s (biplanes) with what came just halfa 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 growingis 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.1° 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 2010,!7 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 nora 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


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.3?

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 bello rather than ad bellum,
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!

Returning to the topic at hand, and quite aside from ad bellum 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,>?
causing the meltdown ofa 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 ofa 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

192


Self-Defense against Computer Network Attack

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.”2°

While itis 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,”3! and while Professor Dinstein is undoubtedly correct that during the
positivist era of the 19 and early 20% 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 51 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.3

126


Information Operations in the Space Law Arena

23. Air Force Doctrine Document (AFDD) 2-5, Information Operations, Aug. 5, 1998. Asan
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-FIGHTER’S
DATA BASE, at xiii (1994).

34. See HUTCHERSON, supra note 33, at xiii.

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.fis.org/spp/eprint/billman.htm.

39. Id.

300


Daniel T. Kuehl

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

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


“Weapons like to Lightning”

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

3. The law of war includes such general principles as the distinction of combatants from
noncombatants, military necessity, proportionality, and the outlawing of indiscriminate weapons
and perfidy.

4, Article 2(4) of the UN Charter requires signatory States to “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, 59 Stat. 1031, 1037. The Charter also permits the Security Council to
authorize coercive measures, such as military force, in the event that there is a “‘threat to the peace,
breach of the peace, or act of aggression.” Id., art. 39, 59 Stat. 1043. Article 51 provides that
“nothing in the present Charter shall impair the inherent right of individual or collective
self-defense, ifan armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security. Id., art. 51, 59
Stat. 1044-45. The DoD/GC Paper concludes that “[a] close parsing of the language would tend
to limit its effect to attacks and invasions using traditional weapons and forces.” DoD/GC Paper,
supra note 2. However, the paper does not explicate the opposing view, namely that an armed
attack may not mean only an armed attack in a traditional sense, but also may include information
warfare because information operations can lead to property destruction and the loss of life. Still,
the paper goes on to state that there is “a well-established view that article 51 did not create the
right of self-defense, but that it only recognized a pre-existing and inherent right that is in some
respects broader than the language ofarticle 51.” Id. In other words, even ifinformation operations
might not constitute an armed attack under the language of Article 51, States might have a right of
self-defense in response to information warfare attacks based on a more expansive right of
self-defense that existed prior to the UN Charter.

5. See also Todd Morth, Considering Our Position: Viewing Information Warfare as a Use of Force
Prohibited by Article 2(4) of the U.N. Charter, CASE WESTERN RESERVE JOURNAL OF
INTERNATIONAL LAW 567-600 (Spring-Summer 1998); Richard W. Aldrich, The International
Legal Implications of Information Warfare (US Air Force Academy, Institute for National Security
Studies, 1995); Sean P. Kanuck, Information Warfare: New Challenges for Public Intemational Law, 37
HARVARD INTERNATIONAL LAW JOURNAL 272 (1996).

6. See generally, LAWRENCE T. GREENBERG, SEYMOUR E. GOODMAN, & KEVIN J. SOO
HOO, INFORMATION WARFARE AND INTERNATIONAL LAW (1997).

7. See generally, THE INFORMATION REVOLUTION AND INTERNATIONAL SECURITY
(Stuart J.D. Schwartzstein ed., 1996). See THE INFORMATION REVOLUTION AND
INTERNATIONAL SECURITY (Ryan Henry & C. Edward Peartree eds., 1998).

8. See generally, IN ATHENA’S CAMP: PREPARING FOR CONFLICT IN THE INFORMATION
AGE, (John Arquilla & David Ronfeldt, eds., 1997); DAVID A. OCHMANEK, EDWARD R.
HARSHBERGER, ET AL., TO FIND AND NOT TO YIELD: HOW ADVANTAGES IN
INFORMATION AND FIREPOWER CAN TRANSFORM THEATER WARFARE (1998). See also
BRIAN NICHIPORCK & CARL H. BUILDER, INFORMATION TECHNOLOGIES AND THE
FUTURE OF LAND WARFARE (1995).

9. Prosenjit Bhattacharya, The Next Wars in Space, Cyberspace, FOREIGN ECONOMIC TIMES,
Dec. 21, 1999. One advantage that western countries have in terms of facing information warfare
attacks is that they have already been targeted themselves by their own children, namely teenage
hackers who constantly probe governmental and other key computer systems for weaknesses. In
essence, these teenage hackers keep governmental and industry leaders who are charged with
defense against information warfare on their toes, resulting in hardened defenses that have as a

390


Wired Warfare: Computer Network Attack and the Jus in Bello

amount of “force” being applied against a target; and 3) the inability to ensure
the weapon strikes precisely the right aim point.8! 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.”®3 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 ofa
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

203


Douglas S. Anderson and Christopher R. Dooley

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.!55 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.”1°¢ It is the principle
of superfluous injury that has led nations to agree to ban certain weapons.!57 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.!5° 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.!© To distinguish between combat-
ants and noncombatants, the rule developed that combatants must wear a dis~
tinctive uniform.!6! 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.

Ifa 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 Jaw 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
froma legitimate use of military force not be disproportionate to the military ad-
vantages anticipated.1© 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

289


Wired Warfare: Computer Network Attack and the Jus in Bello

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,>®
whereas a civilian object is one that is not a military objective.5” 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.>8

Doubts as to the character ofan object or individual are to be resolved in favor
of finding civilian status.5? 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 ofa 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.”6°
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.

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

197


XVI

Computer Network Attacks by Terrorists:
Some Legal Dimensions

John F. Murphy*

\ 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.! 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 ofa 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.” 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.>


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 ofan impact on civilian sys-
tems, and the relatively low understanding ofits 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.8° 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.).°° 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.%!

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

204


Responding to Attacks on Critical Computer Infrastructure

Significant from Professor McDougal’s interpretation is our correlative rec-
ognition of the right to counter the imminent threat of techno-violence as well
as actual destructive acts of information warfare. This comprehensive concep-
tion of permissible or defensive actions, honoring appropriate response to threats
ofan imminent nature, is merely reflective of the customary international law. It
is precisely this anticipatory element that is critical to an effective policy to coun-
ter destructive acts against critical information systems. This does not suggest the
Jack of international law restraints upon the determination of necessity for pre-
emptive action. Rather, it suggests that legitimate considerations for effective
response to evidence of imminent destructive acts against critical communica~
tions infrastructure must be appraised in the total context in which they occur.
One aspect of this contextual appraisal of necessity, especially as it relates to re~
sponding after the fact to destructive acts against our critical information sys-
tems, concerns the issue of whether force can be considered necessary if peaceful
measures are available to lessen the threat. To require a State to tolerate attacks
on infrastructure critical to its security and/or economic well-being without re-
sistance, on the grounds that peacefull means have not been exhausted, is absurd.
Once an attack on critical infrastructure has occurred, the failure to consider a
military response would play into the hands of those governments or groups
who deny the relevance of law in their actions. The legal criteria for the propor~
tionate use of force is established once a State or identifiable group-supported at-
tack on technical infrastructure critical to the security of the nation has taken
place. No State is obliged to ignore an attack as irrelevant, and the imminent
threat to the national security requires consideration of a response.

A related, but more difficult, issue concerns the elapsed time between the at-
tack on critical infrastructure and the identification of the State or group respon-
sible. Admittedly, there must be some temporal relationship between a
destructive act and the lawful defensive response. Nevertheless, it would be un-
reasonable to preclude the victim of techno-violence from redress, based upon a
doctrinaire determination that the threat of further destructive intrusions into a
critical system is no longer imminent, when the perpetrator’s own actions have
precluded immediate identification.

The requirement of proportionality is linked to necessity. Professor
McDougal and Dr. Feliciano define the rule as follows:

Proportionality in coercion constitutes a requirement that responding coercion
be limited in intensity and magnitude to what is reasonably necessary promptly to
secure the permissible objectives of self-defense. For present purposes, these
objectives may be most comprehensively generalized as the conserving of

426


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.”> Our
internationals are people everywhere, with whom we share a mutual com-
mitment of protection under the developing international law of human
tights.

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 of Ja-
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.

66


Computer Network Attacks by Terrorists

MLATSs 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.!34 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.!35 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.!38
Reitinger concludes that a grand jury subpoena can order the production of
the plaintext of encrypted documents and the production of documents that
reveal keys. He further concludes, however, that whether law enforcement

342


Information Operations in the Space Law Arena

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
ofa 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.

292


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

or the computers and networks themselves.””!° 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.!! 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 Chief’ 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 ofsuch an extrinsic ef-
fect would be the hostile manipulation ofa computerized railway control system
as to produce train wrecks.!? Similar hypothetical examples abound, running
from the potentially catastrophic! to the merely vexatious.!+ 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
nota 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; (iii)
preparing the battlespace by incapacitating the adversary’s command, control,
and communication capabilities; or (iv) causing property damage, physical

76


Roger W. Barnett

the attack might be precisely focused on a known, discrete target; or it might
take the form ofa 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 ofall of our communications
now go over public infrastructure—public telephone lines, telephone switches,
computer systems, et cetera.”!0 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


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 Tadié, 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. See E. 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. SeeR.G. Hanseman, The Realities and Legalities of Information Warfare, 42 AIR FORCELAW
REVIEW 173, 191-195 (1997).

49. State B may recruit foreign professional “hackers” as mercenaries in its service. Fora 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 1.CJ. 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 outin 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 ofa defensive armed reprisal (against State-sponsored terrorism) is the
US air-raid on Libyan targets in 1986 (in response toa bomb, which exploded in Berlin, killing two
American servicemen and wounding many others). See W.V. O’Brien, Reprisals, Deterrence and
Self-Defense in Counterterror Operations, 30 VIRGINIA JOURNAL OF INTERNATIONAL Law 421,
463-467 (1989-1990).

60. Sce 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


“Weapons like to Lightning”

other Hostile Use of Environmental Modification Techniques, signed in 1977, contains some
provisions applying to space activity, but these are not relevant to information operations. See
DoD/GC Paper, supra note 2.

31. DoD/GC Paper, supra note 2. See MICHAEL J. MUOLO, SPACE HANDBOOK: A WAR
FIGHTER’S GUIDE TO SPACE 53-57 (1993).

32, Outer Space Treaty, supra note 26, art. IV, 18 UST. 2413-14, 610 U.N.T.S. at 208.

33, Id. See also DoD/GC Paper, supranote 2. The 1963 Treaty Banning Nuclear Weapon Tests
in the Atmosphere, in Outer Space and Under Water (Limited Test Ban Treaty) prohibits nuclear
explosions in outer space (Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43).

34. Limitation of Anti-Ballistic Missile Systems Treaty, May 26, 1972, art. V, US-USSR, 23
US.T. 3435, 3441.

35. See DoD/GC Paper, supra note 2.

36. Outer Space Treaty, supra note 26, art. IV.

37. See Byard Q. Clemmons, Cybenvarfare: Ways, Warriors and Weapons of Mass Destruction,
MILITARY REVIEW, Sept.—Oct. 1999, at 35-45.

38. See id.

39. See DoD/GC Paper, supra note 2.

40. See generally, THE US AIR FORCE IN SPACE: 1945 TO THE TWENTY-FIRST CENTURY
(R. Cargill Hall & Jacob Neufeld eds., 1998); AIR AND SPACE POWER IN THE NEW
MILLENNIUM (Daniel Goure & Christopher M. Szarza eds., 1977); MUOLO, supra note 31, vol. I
&IL

41. See Michael N. Schmitt, Computer Network Attack and the Use of Force in Intemational Law:
Thoughts on a Nonnative Framework, 37 COLUMBIA JOURNAL OF TRANSNATIONAL LAW
885-937 (1999).

42. Constitution and Convention of the International Telecommunication Union, Dec. 22,
1992, S. Treaty Doc. No. 104-34. (1996) [hereinafter ITU Convention].

43. Id., art. 45.

44. Id., Annex 2.

45. See DoD/GC Paper, supra note 2. The paper makes reference to the articles as
numbered in the 1982 International Telecommunication Convention, the predecessor of the
ITU Convention of 1992. The substantive content of the articles in both conventions is the same.

46. ITU Convention, supra note 42, art. 48.

47. Ia.

48. See DoD/GC Paper, supra note 2.

49. ITU Convention, supra note 42, art. 34, S. Treaty Doc. No. 104-34.

50. Id.

51. Id., art. 35.

52. DoD/GC Paper, supra note 2.

53. It is interesting to note that domestic US law concerning telecommunications, 47 US
Code § 502, provides as follows:

Any person who willfully and knowingly violates any rule, regulation, restriction, or
condition ... made or imposed by any international radio or wire communications treaty or
convention, or regulations annexed thereto, to which the United States is or may hereafter
become a party, shall, in addition to any other penalties provided by law, be punished, upon
conviction thereof, by a fine of not more than $500 for each and every day during which
such offense occurs.

The DoD/GC Paper notes that the Department of Justice’s Office of Legal Counsel issued a
written opinion stating that 47 US Code § 502 does not apply to US military personnel acting
under instructions of the President as Commander in Chief, specifically referring to the October

392


Yoram Dinstein

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;!7 (ii) a notifica-
tion that a member of the diplomatic staff of State B accredited to State A is
persona non grata;8 (iii) the prohibition of the import of certain goods from State
B into State A (absent treaty commitments to the contrary);!9 and (iv) espionage
carried out by clandestine agents of State A.2° 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).?!

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;?2 if State A’s trawlers fish in the ex-
clusive economic zone off the coast of State B;?9 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-4-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?5]. The Council may then recom-
mend appropriate methods of adjustment [pursuant to Article 36(1)5] or even
determine the existence of a threat to the peace (in compliance with the
above-mentioned Article 39).?” Acting on its own, State B may also apply
non-forcible reprisals against State A?8 (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.?9
Whichever channel of response is chosen by State B against State A, the

101


George K. Walker

70. Helsinki Principle 3.3, cmt., supra note 13, at 505; ANNOTATED SUPPLEMENT, supra
note 5, {{] 7.8-7.8.1; SAN REMO MANUAL, supra note 12, 4 108 & cmt. 108.1. Helsinki Principle
3.2, supra 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 ifthere isa 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, { 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 REMO MANUAL, supra note 12, §{] 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); WJ. 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, {{] 1-4, 181 L.N.T.S. 135, 137-38, amended by
Agreement Supplementary to Nyon Arrangement, Sept. 17, 1937, {ff 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,
Intemational 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.LA.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, / 2-1g; MYRES MCDOUGAL ET AL., LAW AND
PUBLIC ORDER IN SPACE 307-09 (1963); ANNOTATED SUPPLEMENT, supra note 5, 2.5.2.3;

259


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.”” 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-fire78), 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 bello). Admittedly, where CNAs are concerned, a war of self-defense
would be vindicated as an appropriate response only in outré 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.”®° 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.®!

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 ofan 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’). Ifthe 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

110


Michael N. Schmitt

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.”"6?

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.®> Of course, the facility and equipment being used to
conduct the operations might well be valid military objectives and, asa 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. Ifan object is being used for military
purposes, it is a military objective vulnerable to attack, including computer net-
work attack. This is true even ifthe 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

198


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 1.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 Intemational
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 (XIX), 29(1) RESOLUTIONS ADOPTED
BY THE GENERAL ASSEMBLY 142, 143 (1974).

15. Gf. 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 110. 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.

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


An Assessment of International Legal Issues

Il. THE LAW OF WAR
A. Essentials of the Law of War.

The terms “law of war” and “law of armed conflict” are synonymous. The
latter term has the virtue that it more clearly applies to all international armed
conflicts, whether or not they are formally declared wars. “Law of war” is
shorter and more familiar, and we will use it in this paper. The application of the
law of war does not generally depend on which of the parties was at fault in start-
ing the conflict. The law of war applies whenever there is a state of international
armed conflict, and it applies in the same manner to all the parties to the conflict.
There is a small subset of the law of war that applies to noninternational armed
conflicts such as civil wars, but those sorts of conflict are not immediately rele-
vant to this paper and will not be discussed. As with other branches of interna~
tional law, the law of war is composed of treaties and customary international
law. The United States is a party to eighteen law of war treaties, along with their
various annexes and protocols, and several more law of war agreements are
pending before the Senate. The United States also recognizes the existence of a
considerable body of customary law of war.

The general principles of the law of war have been expressed in various ways,
but their essence can be said to be as follows:

+ Distinction of combatants from noncombatants: With very limited excep-
tions, only members of a nation’s regular armed forces are entitled to use force
against the enemy. They must distinguish themselves from noncombatants, and.
they must not use noncombatants or civilian property to shield themselves from
attack. If lawful combatants are captured by the enemy they may not be pun-
ished for their combatant acts, so long as they complied with the law of war.
They are required to be treated humanely in accordance with agreed standards
for the treatment of prisoners of war, and they must be released promptly at the
cessation of hostilities. Persons who commit combatant acts without authoriza-
tion are subject to criminal prosecution.

* Military necessity: Enemy military forces are declared hostile. They may be
attacked at will, along with their equipment and stores. Civilians and civilian
property that make a direct contribution to the war effort may also be attacked,
along with objects whose damage or destruction would produce a military ad-
vantage because of their nature, location, purpose, or use. A corollary of this
principle is that noncombatants and civilian objects making no direct

468


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.!

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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Appendix

intelligence from other sources, or it might be reliably inferred from the rela-
tionship of the attack to other events.

Locating the computer used by the intruder does not entirely solve the attri-
bution problem, however, since it may have been used by an unauthorized per-
son, or by an authorized user for an unauthorized purpose. A parent may not
know that the family computer is being used for unlawful attacks on govern-
ment computer systems. Universities, businesses, and other government agen-
cies may be similarly unaware that their computer systems are being misused.
The owner ofa computer system may have some responsibility to make sure it is
not being used for malicious purposes, but the extent of such responsibility, and
the consequences of failing to meet it, have apparently not been addressed in any
USS. or foreign statute or court decision. These considerations should make us
cautious in implementing any “active defense” system for government com-
puter systems. Nevertheless, circumstances may arise in which the urgency of
protecting critical information systems from serious damage may warrant adop-
tion of a properly designed “active defense.”

Similarly, characterization ofan intruder’s intentions may be difficult. Never-
theless, such factors as persistence, sophistication of methods used, targeting of
especially sensitive systems, and actual damage done may persuasively indicate
both the intruder’s intentions and the dangers to the system in a manner that
would justify use ofan “active defense.” As with attribution, there may be useful
intelligence on this issue from other sources, or it may be possible to reliably in-
fer the intent of the intruder from the relationship of the attack to other events.

A determination that an intrusion originates in a foreign country would be
only a partial solution to the attribution problem, since the attack may or may
not be state-sponsored. State-sponsored attacks may well generate the right of
self-defense. State sponsorship might be persuasively established by such factors
as signals or human intelligence, the location of the offending computer within a
state-controlled facility, or public statements by officials. In other circumstances,
state sponsorship may be convincingly inferred from such factors as the state of
relationships between the two countries, the prior involvement of the suspect
state in computer network attacks, the nature of the systems attacked, the nature
and sophistication of the methods and equipment used, the effects of past attacks,
and the damage which seems likely from future attacks.

Attacks that cannot be shown to be state-sponsored generally do not justify
acts of self-defense in another nation’s territory. States jealously guard their sov-
ereign prerogatives, and they are intolerant of the exercise of military,
law-enforcement, and other “core sovereign powers” by other states within
their territory without their consent. When individuals carry out malicious acts

487


Michael N. Schmitt

psychological operations, military deception, electronic warfare, physical attack, and computer
network attack. See Chairman of the Joint Chief of Staff, Joint Publication 3-13, Joint Doctrine
for Information Operations, at I-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 I-2-I-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 ofnew 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 fill 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.

7.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 Intemational Law: Thoughts 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, The 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, The Intemational Legal Implications of Information Warfare,

210


Appendix

private conduct in its territory and has failed to do so, or the circumstances dem-
onstrate that such a request would be futile. Nevertheless, in some circumstances
the National Command Authority (NCA) might decide to defend U.S. infor-
mation systems by attacking a computer system overseas, and take the risk of
having to make an apology or pay compensation to the offended government.
Among the factors the NCA would probably consider would be the danger pre-
sented to U.S. national security from continuing attacks, whether immediate ac-
tion is necessary, how much the sanctuary nation would be likely to object, and
how the rest of the world community would be likely to respond.

There need be less concern for the reaction of nations through whose terri-
tory or communications systems a destructive message may be routed. If only
the nation’s public communications systems are involved, the transited nation
will normally not be aware of the routing such a message has taken. Even ifit be-
comes aware of the transit ofsuch a message and attributes it to the United States,
there would be no established principle of international law that it could point to
as being violated. As discussed above, even during an international armed con-
flict international law does not require a neutral nation to restrict the use of its
public communications networks by belligerents. Nations generally consent to
the free use of their communications networks on a commercial or reciprocal
basis. Accordingly, use of a nation’s communications networks as a conduit for
an electronic attack would not be a violation of its sovereignty in the same way
that would be a flight through its airspace by a military aircraft.

A transited state would have somewhat more right to complain if the attack-
ing state obtained unauthorized entry into its computer systems as part of the
communications path to the target computer. It would be even more offended if
malicious logic directed against a target computer had some harmful effect
against the transited state’s own equipment, operating systems, or data. The pos-
sibility of such collateral damage would have to be carefully considered by the
state launching any such attack. If there were a high potential for such collateral
damage to transited systems, the weapon might even be considered to be an “in-
discriminate” weapon incapable of being reliably directed against a legitimate
target.

There are at least two ways in which the availability of improved technology
may affect the active-defense equation. First, it might be argued that as a govern-
ment acquires the ability to build better firewalls and other security systems it
will be harder to argue that an active defense is “necessary.” This argument
might be raised even if the target government has failed to install all possible
technological security measures on the system that is under attack. This de-
manding approach to “necessity” finds little support in the practice of nations.

489


Index

and self-defense: 102-15, 121-41, 153-55, 170-71, 227, 413-14, 421-22, 424-27, 432-35
and sniffers: 12, 27-28, 290-92, 421
State-supported motivations for: 26, 411, 441
status under UN Charter Article 2(4): 79-92
and strategic information systems: 22
swarming attacks: 404-05
and threats to the territorial integrity or independence of a State: 86
and trap doors: 290-92
unintended consequences of: 17-18, 201-02, 376-77, 403
by US against Serbian computer networks: 74
and US denial of space to adversaries: 271-72, 277
and use of mercenary computer experts: 207-08
use of military personnel for: 288-90
used as an instrument of State action: 73-74, 77-79, 84-93, 103, 104-05, 443, 445-50
used by State-sponsored terrorists: 103, 104
used by terrorists: 103-04, 323-44, 430, 433-34
used for economic or political coercion: 80-82, 85, 86-88, 89, 91-92
used for reprisals: 200
used in self-defense response: 153-55
used to cause property damage: 76-77
used to disseminate deceptive information: 76, 79, 85, 171, 195, 205-06, 269-70, 336, 440
used to prepare the battlespace: 76, 139, 141, 152, 153, 157, 220, 314-16
in wartime: 155-59, 188-209
as a weapon of mass destruction: 279-80, 381, 414, 443
Computer network defense
against infrastructure attacks: 43, 397
British military: 53
definition of 44
Computer network exploitation
definition of: 44
and espionage: 4, 16, 76, 79, 105, 154, 170, 172, 228, 290-92, 314-16, 326, 388, 422
Computer networks
and law of neutrality: 176-78
and military early warning systems: 148-49
military reliance on: 4, 147-49
physical attacks against: 77, 155
security for: 15, 28, 149-50, 328, 361
self-aware behavior: 18-19
vulnerabilities: 4, 12-14, 19-20, 46, 148-50, 421-22
Computer operators
as illegal combatants: 197, 198, 209, 289
injured by the “666" virus: 449
legal status of personnel performing CNE and CNA: 171~72, 197-98, 289
military personnel: 149, 172, 198, 289
mission-essential civilians: 197~98, 209, 289
need to educate regarding security: 12-13, 15

545


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®®
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
1994. 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
tight 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,9! 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


Horace B. Robertson , Jr.

27. United States Identical Notes, reproduced in 22 AMERICAN JOURNAL OF
INTERNATIONAL LAW (Supp.) 109 (1928).

28, DINSTEIN, supranote 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 ofan
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-Defeuce 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 Anned Force, 82 MICHIGAN LAW REVIEW 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
(9th ed, 1992).

40, Id, at 422 (emphasis supplied).

41, Rosalyn Higgins, The Attitude of Westem 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, Jan 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 (288th 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.
Sce, ¢.g., William T. Mallison and Sally V. Mallison, The Israeli Aerial Attack of June 7, 1981, Upon
the Tragi Nuclear Reactor: Aggression or Self-Defense?, 115 VANDERBILT JOURNAL OF
‘TRANSNATIONAL LAW 417 (1982); DINSTEIN, 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, Retum 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


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.”* 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.> 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 ofa
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 Attomey 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.

324


James P. Terry

effective reaction that imposes unacceptable costs on the perpetrators and those
who make possible their activities. For domestic intruders, the criminal law may
suffice. For those operating outside the United States, the US reaction must
counter the cyber-terrorist’s strategy within the parameters of international law
and PDD 62. Those who suggest otherwise neither understand the inherent
flexibility of international law nor the cost of violating that law.

In this regard, a case for a response in self-defense is not persuasive either on
the political or legal level unless a reasonable basis of necessity is perceived.
Those to whom a justification is addressed (that is, other governments or the
public) will consider whether it is well founded; they will not regard the use of
force as a purely discretionary act. An important dimension of this question con-
cerns the separate issue of when does action become necessary; that is, when is
the use of force necessary to enforce adherence to the norm of information secu-
rity. As Professor Lauterpacht has pointed out, every State judges “for itself, in
the first instance, whether a case of necessity in self-defense has arisen,” but that
“it is obvious that the question of the legality of action taken in self-preservation
is suitable for determination and must ultimately be determined by a judicial au-
thority or political body . . . .”35 The United States has long taken the position
that each nation is free to defend itself and is the “judge of what constitutes the
right of self-defense and the necessity . . . ofsame.”3¢ Similarly, more than a half
century ago, Secretary of State Frank Kellogg noted that when a State has re-
sorted to the use of force, “if it has a good case, the world will applaud and not
condemn its actions.”37

A Pro-Active Response to Threats to Critical Infrastructure is Authorized under
International Law

The decision to respond with force against techno-violence must be as
closely tied to a clear objective as in the case where planning is conducted at
the higher end of the coercion spectrum. Because the relationship between
objective and threat is often unclear in the low intensity conflict arena, a strat-
egy to fight cyberterrorism must always focus on the underlying political pur-
pose of the State or group attempting to degrade or destroy an element of
critical US infrastructure, whether that element be commercial, communica-
tions, intelligence, or defense-related. That purpose is unquestionably the deg-
radation of our critical systems such that we are unable to defend ourselves
militarily or protect ourselves from serious political or financial overreaching
on the part of our adversaries. How do we counter this purpose, this objective?
Former Secretary of State Shultz was correct when he stated that US policy

433


Appendix

they will not interfere “with command and control networks in a manner which
could cause harm to personnel or damage to equipment of the armed forces of
the other Party.” Article I, Section 9 of the agreement defines “interference
with command and control networks” as “actions that hamper, interrupt or
limit the operation of the signals and information transmission means and sys-
tems providing for the control of personnel and equipment of the armed forces
ofa Party.” The United States has recognized the Russian Federation as a suc-
cessor state to the Soviet Union for purposes of this agreement. The question of
succession under this agreement by other nations that were part of the Soviet
Union has not been authoritatively addressed. In the rather narrow circum-
stances in which this agreement applies, it remains a binding international legal
obligation.

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INTERNATIONAL LAW STUDIES

Volume 76


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. Ifa neutral allows passage, the neutral assumes responsibility for pro-
viding for control and safety of these personnel.*! 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, butis 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.*? Similarly, a prisoner of war staying in neutral territory?
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.‘# Oceans users, whether neutral or belligerent,
must pay due regard‘5 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.4® 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,‘ fundamental change of circumstances
may intervene,“ or there may be a material breach.*9 Jus cogens norms, e.g., per-
haps the inherent right of self-defense,5° may trump treaty law.5! War, or armed
conflict, may end or suspend treaty obligations.>2 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.>4 The same considerations and applications of
these principles in land warfare to [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.5®

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

237


George K. Walker

warfare feature; it serves as an identification method. An IIZ might havea 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.

Asa final point, the due regard principle, derived from the LOS and its law of
naval warfare counterpart,’? 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 ofarmed 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.8° Treaty suspension or termination principles may apply.®! Besides
air warfare rules, belligerents must observe principles of military objective, ne-
cessity, and proportionality applying to all modes of war.6?

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

241


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.* 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.® 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.”

“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 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

266


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,”6+ 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.”6 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 ofthe 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 ofa State of the territory ofanother
State, or any military occupation, however temporary, resulting from such

133


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 asa
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 ofa
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 ofan 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, at B1; Philip Sherwell, Sasa Nikolic & Julius

94


Index

Linnan, David: 127
Little Creek, Virginia: 51-52
Logic bombs: 327, 411
Luxembourg: 337

Mallison, Sally: 132
Mallison, Thomas: 132
Malvinas conflict: 190
Mao Tse-Tung: 270
Maritime communications: 286-87
Maritime Neutrality Convention: 237
Markoff, John: 363
Marsh, General Robert T., USAF: 31, 430
Martens Clause: 189, 225, 423
McDougal, Myres: 127, 129, 131-32, 135, 425-27
Mercenaries: 54, 207-08
Mexico: 64-65, 335, 338, 339-40
Meyers, General Richard: 356
Middleton, Bruce: 27
Military command and control
and access to information: 2-3, 7-8, 41, 292-93
disruption of enemy’s: 220
and planning for the use of CNA: 398-99
protection against CNA: 355
role of computers in: 220, 265, 315-16
vulnerability to CNA: 149-52, 220, 354
Military doctrine. See Doctrine.
Military intelligence operations
and CNA: 313-16, 388, 442
constraints on: 312, 314~15, 329
need to combine CNE with other methods: 170
oversight of: 314-15, 316
and prevention of CNA: 328-29
reliance on computer networks and webs: 148-49
and telecommunications: 8, 293-94
and US citizens: 313-15, 316
used to investigate private citizens: 357, 376
Military objectives
definitions of: 166-68, 195-96
subject to reprisals: 200
Military personnel, computer operators: 149, 172, 198, 289
Military role in fighting cyberterrorism: 353-67
Military space systems: 265-98

555


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), afPd, 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 ofany state, orin 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 asit deems necessary in order to maintain or restore international peace and security.

113. The International Court of Justice, in Nicaragua v. United States, 1986 1.CJ. Rep. 14, para.
195, stated, “[iJn 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 (1980), reprinted in FBI Authority to Seize Suspects Abroad: Hearing Before
the Subcommittee On Civil and Constitutional Rights ofthe 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, supranote 114, 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
Intemational Law, 84 AMERICAN JOURNAL OF INTERNATIONAL LAW, 444, 488 (1990) (“There

349


Jeffrey H. Smith and Gordon N. Lederman

into the United States. Such a possibility raises several questions concerning the
privacy and rights of US citizens.

In sum, information operations present many complex legal and operational
issues. To first address them in the heat ofan information operation is to risk an-
swering them inappropriately.

The Emergence of Information Operations as a Weapon in the Arsenal of
Democracy and as a Threat to Democracy Itself

The benefits of increased efficiency and greater speed brought by the infusion
of computer technology—particularly the Internet—into the modern economy
come at the price of increased vulnerability to disruption and economic ruin as
the result ofa computer attack.? The United States, as the world’s most techno-
logically advanced nation, is best situated to develop mechanisms that import
information technology into weapons systems® and to exploit other countries’
reliance on information technology. Simultaneously, however, the United
States itself is vulnerable to economic paralysis resulting from the crippling of
key US information technology systems. Indeed, as the Federal Bureau of In-
vestigations’ former information technology security director, Jim Settle, has
stated, the United States could be brought to its knees within 90 days by
10 hackers.? Information warfare could eventually usurp the position of bio-
logical and chemical weapons as “the poor man’s nuclear weapon” because,
like biological and chemical weapons, information warfare does not require
sizeable financial investment but, unlike biological and chemical weapons, is
potentially easier to use—all that is needed for information warfare is a com-
puter and a modem.

As with any concept of sudden importance, the terms and definitions of infor-
mation warfare have yet to coalesce into an established lexicon. The most succinct
definition of information warfare is offered by Winn Schwartau: “Information
warfare is an electronic conflict in which information is a strategic asset worthy of
conquest or destruction.”!9 The US military uses the term “information opera-
tions,” which involves “actions taken to affect adversary information and informa-
tion systems, while defending one’s own information and information systems.”!1
The term “information systems” refers to “the entire infrastructure, organization,
personnel, and components that collect, process, store, transmit, display, dissemi-
nate, and act on information.”!2 “Information operations” thus refers to attacks
against such infrastructure, organization, personnel, etc.

The military also uses the term “computer network attack,” defined as “oper-
ations to disrupt, deny, degrade, or destroy information resident in computers

377


Information Operations in the Space Law Arena

selective disabling by information operations of a particular computer system
does not come within the meaning of WMD 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, “[tJhe moon and other ce-
lestial bodies shall be used by all States Parties to the Treaty exclusively for peacefitl
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.1* Nonetheless, it
has been the US view that the peaceful purpose language does not preclude law-
fal military activity.1°5 While this conclusion seems clear, determining which
military activities in outer space are considered “peaceful”! 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.17

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 1959108 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.!09 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

280


Charles J. Dunlap

67. See Libicki, supra note 54.

68. SeeJohn Diamond, Pentagon Reconsidering What To Make Available on Web, PACIFIC STARS
AND STRIPES, February 18, 1999, at 1.

69. See, e.g., Thomas Ricks, The Pentagon Says Web Site Made Credit-Card Scam Easier, WALL
STREET JOURNAL, December 8, 1999, at 1.

70. See, ¢.g., Eric Yoder, The CyberForce, GOVERNMENT EXECUTIVE, February 2000, at 45
(describing the growing number of specially trained federal employees involved in Internet law
enforcement), www.govexec.com/features/0200/0200s5.htm.

71. 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.

‘72. The UN Charter requires members to “refrain from the use of force 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. In addition,
members are authorized to use force in self-defense if they are the victims ofan armed attack. Id.,
art. 51.

73. See, e.g., WALTER GARY SHARP, SR., CYBERSPACE AND THE USE OF FORCE (1999)
and 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).

74. See generally, James N. Bond, Peacetime Data Manipulation as One Aspect of Offensive
Information Warfare: Questions of Legality under the United Nations Charter Article 2 (4) (1996)
(unpublished paper, Naval War College) (on file with author).

75. Center for International Security and Cooperation, Stanford University, Draft
International Convention to Combat Cyber Crime and Cyber Terrorism (1999),
www.stanford.edu/group/ CISAC/test/research/Draft.html.

76. Id., art. 20.

77. See Bradley Graham, Military Grappling With Rules for Cyber Warfare, WASHINGTON POST,
November 8, 1999, at 1 (discussing Russian efforts to “gather support for a United Nations
resolution calling for new intemational guidelines and the banning of particularly dangerous
information weapons”).

78. See, e.g., Richard Hill, Legal Obstacles Compound Pentagon’s Cybenwar Challenges, DEFENSE
INFORMATION AND ELECTRONICS REPORT, March 12, 1999, at 1, ebird.dtic.mil/Mar1999/
s1999/s19990315legal.htm.

79. Patrick Riley, E-Strikes and Cyber-Sabotage: Civilian Hackers Go Online to Fight, April 15,
1999, Foxnews Online, available at www.foxnews.com/world/041599/ Kosovoside_hackers.sml.

80. See, e.g., Gregory L. Vistica, Cybenvar and Sabotage, NEWSWEEK, May 31, 1999, at 38.

81. See William Arkin, Cyber Bomb in Yugoslavia, WASHINGTON POST (Electronic Edition),
Oct. 25, 1999, and Bradley Graham, Military Grappling With Rules For Cyber Warfare,
WASHINGTON POST, Nov. 8, 1999, at 1.

82, See Protocol Additional I to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts, art. 51, 1125 U.N.T.S. 3, 16
INTERNATIONAL LEGAL MATERIALS 1391, 1413 (forbidding attacks on civilian objects). While the
US has not ratified Protocol I, the US recognizes many ofits provisions as customary international
law or accepted practice. This acceptance includes the provisions of Article 51 with the exception
of paragraph 6 regarding reprisals. International and Operational Law Department, The Judge
Advocate General’s School, United States Army, OPERATIONAL LAW HANDBOOK, 5-2 (2000).

83. John Markoff, Cybenvarfare Breaks the Rules of Military Engagement, NEW YORK TIMES,
October 17, 1999, at 23.

84. CARL VON CLAUSEWITZ, ON WAR 89 (Michael Howard and Peter Paret eds. and trans.,
1976) (1832).

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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.® 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.” Even more recently, another
General Assembly resolution called for the CD to reestablish the prior Ad Hoc
Committee on the Prevention ofan 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.7!

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.’7 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.

275


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.4° 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
ofa State, be considered cybermercenaries?*! Equally plausible is the potential for
them to act on behalf, not ofa 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 ifthe means ofne-
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




An Assessment of International Legal Issues

the agreement entirely. Also, a fundamental change in circumstances may justify
a decision by one of the parties to regard its treaty obligations as suspended or
terminated.

One of these fundamental changes of circumstance is the initiation of armed
hostilities between the parties. Some international agreements specifically pro-
vide that they will remain in effect during armed conflict between the parties,
such as law of war treaties and the United Nations Charter. Most treaties, how-
ever, are silent on whether or not they will continue to apply during hostilities
between the parties. Many peacetime agreements facilitate tourism, transporta-
tion, commerce, and other relationships the continuation of which would be
fundamentally inconsistent with a state of armed conflict between the parties.
Agreements on other subjects, such as boundary settlements and reciprocal
rights of inheritance of private property, may be unrelated to the existence of
hostilities and may ultimately be determined to remain in full force. The issues
involved may be particularly complicated when the treaty concerned is multilat~
eral, rather than bilateral. When two parties to a multilateral treaty are engaged
in armed conflict, the result may well be that the effect of the treaty is suspended
between the belligerents, but remains in effect among each belligerent and the
other parties. We will see later in this paper that the United States is a party to a
variety of bilateral and multilateral agreements containing obligations that may
affect information operations. One of our tasks will be to determine as best we
can which of these agreements are likely to remain in effect during hostilities.
The tests we will apply are (1) whether there is specific language in the treaty ad-
dressing its effect during hostilities between the parties, and (2) ifthere is no such
language, whether the object and purpose of the treaty is or is not compatible
with a state of armed hostilities between the parties.

C. New Legal Challenges Presented by Information Operations.

Many traditional military activities are included in current concepts of “infor-
mation operations” and “information warfare,” including physical attacks on in-
formation systems by traditional military means, psychological operations,
military deception, and “electronic warfare” operations such as jamming radar
and radio signals. The application of international law to these traditional kinds
of operations is reasonably well settled. Similarly, electro-magnetic pulse (EMP)
weapons and directed-energy weapons such as lasers, micro-wave devices, and.
high energy radio frequency (HERF) guns will probably operate in a manner
similar enough to that of traditional weapons that one could apply existing legal
principles to them without much difficulty. It will not be as easy to apply existing

466


Responding to Attacks on Critical Computer Infrastructure

an attack impacts a vital national security interest, would be translated into effec-
tive rules of engagement, specifically, legally defensible targeting decisions.

Understanding the Threat

The world of information operations represents an environment created by
the confluence of cooperative networks of computers, information systems, and
telecommunication infrastructures. The concern addressed here relates to the
threat posed to these systems when operations are unlawfully disrupted, denied,
or degraded, or when secure information that is stored in computers or com-
puter networks is destroyed, compromised, or altered in such a way that it has a
destructive effect on the national security interests ofa nation. Computer espio-
nage and computer network attacks, as well as the subversion of political, eco-
nomic, and/or non-military information bearing on a nation’s capabilities and
vulnerabilities, may well constitute an unlawful use of force warranting a mili-
tary response under traditional international law principles.

The threshold issues which emerge are: (1) which peacetime interstate activi-
ties within the telecommunications highway constitute a threat or use of force;
(2) when does such a threat constitute an attack under the international law such
that a right to use force in self-defense exists; and (3) what is an appropriate re-
sponse. To respond to these issues, we must understand the military applications
of information technology. This requires an understanding of the Internet. The
Internet was originally a network of computers linked by telecommunications
infrastructure and managed by the Department of Defense (DoD) in the 1970s.
The internal computer networks of universities and private research facilities
were merged through the development of hypertext, created in 1989 as the pri-
mary platform of the Internet. It (hypertext) translates diverse computer proto-
cols into standard format.

This hypertext process, while extremely beneficial to both the military and
civilian sectors, has created vulnerabilities. The World Wide Web, the full
implementation of the Internet, which is at once the heart of the Defense Re-
form Initiative and key to the reengineering and streamlining of our business
practices, can provide adversaries with a potent instrument to obtain, corre-
late, evaluate, and adversely affect an unprecedented volume of aggregated
information critical to proper management of DoD and US infrastructure
capabilities.

This chapter responds to these attacks on US infrastructure. Even though in-
ternational Jaw could not have anticipated specific information warfare concerns
when the Hague Conventions of 1899, addressing means and methods of

422


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.'4 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.!5 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


Appendix

'W Gary Sharp, Sr., CYBERSPACE AND THE USE OF FORCE (1999)

IL THE LAW OF WAR

The views of the U.S. military services on law of war matters are summarized in
military publications such as the U.S. Army’s Field Manual 27-10, LAW OF
LAND WARFARE (1956); Air Force Pamphlet 110-31, INTERNATIONAL
LAW—THE CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS
(1976); and Naval Warfare Publication 1-14M, THE COMMANDER’S
HANDBOOK ON THE LAW OF NAVAL OPERATIONS (1995). In addition,
Burrus Carnahan has compiled a comprehensive research report on U.S. practice
relating to customary law of war principles for use by the International Commit-
tee of the Red Cross in its ongoing study of worldwide practice relating to the
customary law of war. Unfortunately, neither Mr. Carnahan’s study nor the
ICRC study is yet available in published form. Finally, the DoD Law of War
Working Group chartered by DoD Directive 5100.77, “The DoD Law of War
Program,” December 1998, has for several years been composing a DOD LAW
OF WAR MANUAL. When it is published it will constitute the most current and
comprehensive statement of the Department’s views on law of war matters.

There are also a large number of books and articles commenting on law of war is-
sues, which are far too numerous to list here.

Information on law of war issues that arose during the 1991 Persian Gulf conflict
can be found in Appendix O, “The Role of the Law of War,” in the DoD report
to the Congress on the conduct of the Persian Gulf War, which is reprinted in 31
INTERNATIONAL LEGAL MATERIALS (1992).

The 1907 Hague Convention Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land is published at 36 Stat. 2310, T.S.
540.

EUTELSAT’s actions during NATO’s 1999 bombing campaign in Kosovo
are described in Steven Pearlstein, Serb TV Gets Notice It’s Canceled, WASH-
INGTON Post, May 23, 1999.

The significance of the “peaceful purpose” principle to the new
INMARSAT is discussed in a April 15, 1999 letter from the COMSAT Cor-
poration’s Office of Legal Counsel to Mobile Datacom Corporation.

525




Is It Time for a Treaty on Information Warfare?

Calls For International Agreements

Public calls by governments for new international agreements on information
warfare consist primarily of: (1) initiatives by the United States and by certain
European and other American nations to promote better international coopera-
tion in investigating and prosecuting computer crimes and terrorism; and (2) a
campaign by Russia in United Nations channels for multilateral arms control
negotiations to protect international “information security.”

International cooperation in investigating and prosecuting computer crimes
has sometimes proven to be quite effective even in the absence of new agree-
ments and working arrangements specifically tailored to this new category of of-
fenses. For example, in 1987 West German authorities relied on the authority
provided by existing German law to trace the origin of over 200 intrusions into
US government computers to four German nationals who turned out to be
working for the KGB.! In far too many cases, however, effective international
cooperation in investigating computer offenses has been frustrated by the un-
willingness of the requested State to cooperate, its lack of domestic legal author-
ity to investigate and punish computer offenses, the absence of established
procedures and points of contact, and problems arising from extradition treaties.

Inan effort to address such problems, in December 1997 the United States Attor-
ney General hosted a meeting of the Group of Eight (G-8) Justice and Interior
Ministers to discuss international cooperation in the investigation and prosecution
of computer intrusions and other high-tech crimes.” Since this meeting, a number
of international working groups have devoted considerable effort to modernizing
the G-8 nations’ domestic criminal laws and to improving international agreements
and arrangements providing for mutual legal assistance and extradition in cases in-
volving computer offenses. This work has also generated a project in the Council of
Europe, which the United States has assisted, to draft an international convention on
“cyber-crime.” The United States has also undertaken similar initiatives in the Or-
ganization of American States and at the United Nations. Significant progress has
been made, but there is still an enormous amount of work to be done in this area.
For example, while several European nations have made significant reforms in their
domestic computer crime laws and the state of procedures for international assis~
tance in investigating computer offenses has greatly improved between various na-
tions, Russia has essentially stonewalled all requests for cooperation in investigating
several thousand intrusions into US military computer systems in early 1999 that ap-
parently originated in Russian territory3

In addition, these efforts have focused on computer offenses committed by
individuals that can be characterized as crimes or terrorism. They are not directly

442


An Assessment of International Legal Issues

of extradition treaties is often frustrated by provisions providing that the re-
quested nation will not extradite its own citizens, or that it will not extradite per-
sons who commit crimes for political reasons.

NOTE: The Department of Justice has undertaken a major initiative with
the “G8” countries (the other seven being the United Kingdom, Germany, Ja-
pan, Italy, Canada, France, and Russia) to modernize the domestic criminal law
of each nation to adequately provide for the investigation and prosecution of
computer intrusions and other high-tech crimes, and to put into place any
needed improvements to international agreements providing for mutual legal
assistance and extradition. In December 1997 the Attorney General hosted a
meeting of the G8 Justice and Interior Ministers to discuss these issues, and a
number of follow-up working group meetings have been held since that time.
The United States has also participated in a project undertaken by the Council of
Europe to draft an international convention on “cyber-crime.” Recently the
United States undertook similar efforts in the Organization of American States
and at the United Nations.

C. The United Nations Convention on the Law of the Sea (UNCLOS).

Many provisions of this treaty, which is before the Senate for advice and con-
sent, are considered to express customary international law. Some of the provi-
sions discussed here are among them, and are therefore considered to be binding
on all nations whether or not they are parties to the Convention. Others consti-
tute new obligations. One principle widely accepted as existing customary in-
ternational law is the obligation in Article 19 for a vessel exercising the right of
innocent passage through a nation’s territorial sea not to engage in activities
“prejudicial to the peace, good order, or security of the coastal State.” The prej-
udicial activities listed in Article 19 include:

+ “any threat or use of force against the sovereignty, territorial integrity or
political independence of the coastal State, or in any other manner in viola~
tion of the principles of international law embodied in the Charter of the
United Nations

* any act aimed at collecting information to the prejudice of the defence or
security of the coastal State

* any act of propaganda aimed at affecting the defence or security of the
coastal State

504


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.1

\ ) \ ] 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.” 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


Index

and assessment of potential collateral damage: 204-05, 208-09, 227-28

characterized as armed attacks: 132-38, 140-41, 164-65, 192, 193-200, 405, 409-10, 422

and civilian targets: 106-07, 193-95, 228

collection of evidence of: 331-32, 333, 340-43

consequences of as basis for applicability of international law: 15, 86, 88-93, 103, 105, 133,
135-38, 140-41, 150, 164-65, 192-93, 194-95, 196-97, 202, 208, 362, 376, 381

criminality of: 90, 94, 103-04, 228, 323-44, 376, 387-88, 433, 442-45

criteria for identifying as analogous to armed force: 89-93, 137-38

defending against: 15, 22, 138-40, 353-67, 427

definitions of: 44-45, 75-76, 77, 102, 147, 188, 326, 377-78, 398, 440-41

denial-of-service attacks: 14, 46, 229, 360, 361, 363

difficulties tracing the source of: 78-79, 107, 111-12, 122, 138-39, 152, 170-71, 206-07,
227, 229-30, 297, 327, 330-31, 343-44, 355, 358-59, 387, 426, 427, 441, 44445

doctrine for the military use of: 37, 51-52, 268, 397

and economic targets: 196-97

espionage as a form of: 67, 326

highly classified nature of 402, 407

identification as a weapon: 114-15, 201-02

inability to aim accurately without unforeseeable effects: 169-70, 201-02, 203, 412-13

as indiscriminate attack: 169-71, 178-79

as an indiscriminate weapon: 201-02, 413, 449

by insiders: 26-27

during Kosovo conflict: 46, 74

Jack of State practice relating to international law: 78

as a means to reduce civilian casualties and damage: 157-58, 159, 179, 199, 204-05, 208-09,
363, 365, 409, 414

methods of: 11-14, 23, 27-30, 76-77, 150

on military computer networks: 46-47, 155-59, 353-54

minimization of the damage caused by: 330

mission planning process: 204, 209, 398-99

motivations for: 23, 25-27, 105, 358-59, 441

objectives of: 23-25, 45-46, 76-77, 79, 157-58

obstacles to the use of: 402-05

potential consequences of: 23, 31-32, 105, 153-54, 156-58, 204-05, 208-09, 227-28, 403,
408, 411, 412-13, 441

potential for military use: 166, 179, 271-72, 356, 363, 395-99

potential targets: 22, 23, 24-25, 30-31, 193-200, 385-86

potential use for sabotage: 102

prevention of: 326-29, 359-60, 427, 432-33

proportionality and military use of: 147-60, 202-04, 208-09, 288-90, 403, 411

reluctance to use: 402-03

and responsibilities of neutral States: 235-36

results-based approach to the use of 406-07

retaliation for: 227-28, 358, 426, 432-35

rules of engagement for the use of during armed conflict: 395-414

security technologies and products to prevent: 328, 361

544


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. Fora description of the effects ofa “logic bomb,” “worms,” and a “sniffer,” see Steve Lohr,
Ready, Aim, Zap, NEW YORK TIMES, Sept. 30, 1996, at D-1. See also David Tubbs, Exploits: How
Hackers Hack, 20:4 NATIONAL SECURITY LAW REPORT, 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 bellum 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 Chief 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 DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 231 (3d ed. 2001).

25. Chairman Joint Chie& 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 DINSTEIN, 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 1-14M, supra note 32, at para 8.1.

37. NWP 1-14M, supranote 32, at para. 8.1.21. See also Protocol I, art. 57 2(a) (iii), supranote 31, at
453; SAN REMO 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. Sce Symposium, supra note 29.

161


“Weapons like to Lightning”

US Information Operations in Space

International law concerning activities in outer space is critical for informa-
tion operations because outer space is a vital battleground for information opera-
tions. Space-based systems “perform such functions as communications relay,
image recollection, missile warning, navigation, weather forecasting, and signals
intelligence.”24 As a result, US information operations will be aimed in part
against space-based systems. Such attacks could manifest themselves in attacks
against ground stations, jamming communications links, or attacking the satel-
lites in space themselves.25 Furthermore, as apparently occurred during the
Kosovo air campaign, satellites can be used to relay transmissions that are part of
a US information operation against a ground-based target.

Since the first satellite was launched by the Soviet Union in 1957, States
have signed four major multilateral space treaties: (1) the 1967 Outer Space
Treaty;26 (2) the 1968 Rescue and Return Agreement;”’ (3) the 1972 Liability
Convention;?8 and (4) the 1975 Registration Convention.2? The Moon Agree-
ment of 1979 was not signed by the United States and has in fact only been
signed by eleven, and ratified by nine, countries.2° Emerging from these four
major space treaties are several principles concerning the use of space: (1)
outer space is free for exploration and use by all States and cannot be subject
to any claim of sovereignty; (2) activities in space must be done with due re-
gard for the interest of other States; and (3) States that launch objects into
space are liable for any damage they cause. As the DoD/GC Paper highlights,
the rules on the use of force such as the law of war and the UN Charter are
fully applicable in space. The paper also notes that, while space Jaw contains
the principle of non-interference with other States’ space systems, this provi-
sion might be inapplicable during wartime if the treaties themselves do not re-
main in effect during hostilities.31

Although these treaties strictly limit the use of space for military purposes,
they do not outlaw all military activities per se. Rather, the Outer Space Treaty
mandates that parties shall not “place in orbit around the Earth any objects carry-
ing nuclear weapons or any other kinds of weapons of mass destruction, install such
weapons on celestial bodies, or station such weapons in outer space in any other
manner” (emphasis added).32 The Outer Space Treaty also prohibits the estab-
lishment of military bases and other types of military activities on the moon.*3
The 1972 Anti-Ballistic Missile (ABM) Treaty provides that no party may “de-
velop, test or deploy” space-based ABM systems or components.*+ As the
DoD/GC Paper summarizes, the web of international treaties concerning space
prohibits the stationing, testing, or exploding of nuclear devices in outer space

380


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.‘ 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.*6

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


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.1!4 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
tules 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.!!6 The new technology
might be employed to give notice, adequate under the cixcumstances, in tradi-
tional warfare situations in addition to the usual means of doing so. Given [W
technology’s fluidity and exponential growth, the relative lack (thus far) of prac-
tice in TW situations, and the relatively minimal number (again thus far) of claims
and counterclaims!!7 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.!!8 Haphazard as the prospect may be, rules for IW
should be left to developing customary norms and general principles, perhaps
with help from commentators, !!° before serious consideration ofa 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 Wendell 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 Chief 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 Modem Armed Conflict: A

247


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 ofa 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 www.rootshell.com’). 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


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. Ifan 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 ofany 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, The Law of 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 AIR 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, Bellu Americamun: The US View of
Twenty-First Century War and its Possible Implications for the Law of Anned 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 William]. Fenrick, The Rule of Proportionality and Protocol Additional Lin Conventional Warfare, 98
MILITARY LAW REVIEW 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


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. 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 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 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 ofa

224


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


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 ina 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.5° 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 ofa
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 ofa 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.5! 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 ofa “nuanced code for appraising the lawfulness of indi-
vidual unilateral uses of force”>? that is different from Article 2(4). Ifso, it can be

93


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, 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


Brian T. O'Donnell and James C. Kraska

uniform approach. Separate ROE issued by the combatant Com-
manders-in-Chief (CINCs)*4 augment the SROE, and are referenced as “the-
ater-specific” ROE.?5 This marked a break from past practice, in which each
CINC had a theater-wide top-to-bottom set of rules. Also, the 1994 SROE
clarified a commander’s inherent right and obligation of self-defense, and artic-
ulated a bright-line distinction between self-defense and the use of force for
mission accomplishment. For self-defense, the SROE are firmly grounded in re-
sponding to a hostile act or responding to a demonstration of hostile intent. One
of the more significant changes was the declassification of the basic self-defense
SROE provisions. This enhanced training and application throughout US
forces and enabled better coordination between allies and coalition partners.

The most recent iteration of the SROE was released on January 15, 2000.76
This latest version further refines and clarifies the concepts contained in earlier
editions. It is comprised mainly of thirteen enclosures, including a separate en-
closure for Information Operations. Unlike the 2000 revision, the 1994 edition
contained little substantive mention of CNA, sticking mostly to definitional
terms and basic concept statements. Under the SROE, use of CNA may be au-
thorized to a commander under the umbrella of the mission ROE provisions and
the international law of armed conflict (LOAC), subject to any additional supple-
mental authorizations or restrictions received from higher authority.27

Even though commanders of forces tasked to accomplish an operation or
mission might be authorized CNA as a means of warfare, that does not mean
they will decide to use it. Historically, personnel in the fleet or field did not ques-
tion the ROE they were provided. Often, ROE were not well-understood
within theater, or at the tactical level. Moreover, there was a sense that the ROE
dictated from above could not be changed and were to be applied without ques-
tion.28 This was demonstrated during the 1981 Gulf of Sidra freedom of naviga-
tion operation off the coast of Libya. Prior to the operation, orders issued to the
Navy F-14s restrained those forces from responding to indications of hostile in-
tent even though the ROE in effect at the time authorized self-defense in re-
sponse to hostile intent.?9 Another instance occurred during the bombing of the
Marine Battalion Landing Team (BLT) Headquarters building in Beirut, Leba-
non, in 1983, whena local commander’s interpretation of the ROE led to orders
for “sentries to keep their magazines in their ammunition pouches as a precau-
tion against an accidental or over-eager discharge of a weapon that might kill or
wound one of the thousands of Lebanese civilians who visited the airport
daily.”30

401


Index

Reisman, W. Michael: 74
Reitinger, Phillip: 342-43
Rendition, process of: 332, 337-40
abduction: 338-40
deportation: 337-38, 339-40
exclusion: 337-38
and “hot pursuit”: 337
Reparations and computer network attacks: 178
Reprisals: 101-02, 200, 242, 424, 427
Rescue and Return Agreement (1968): 380
Retorsion: 101, 242
Revolutions in military affairs
past: 2, 21-22, 48-49
present: 2, 22, 51, 353, 396-97
Roach, Captain J. Ashley: 407-09
Rona, Tom: 36
Rules ofengagement. See also Standing Rules of Engagement for US Forces; Joint Chiefs of Staff.
and evaluating targets for CNA: 412
dormant ROE: 406-07
historical development of: 399-401, 428-29
and right of self-defense: 421-22, 428-29
supplemental developed by commanders: 406-07, 408-10
for the use of computer network attack: 395-414, 428, 429-30
Ruses of war: 171, 205, 411
Russia
and Chechnya: 190
and draft resolution presented to the UN General Assembly in 1998: 178-79, 362-63,
388-89, 427, 442-44, 450, 452
and effort to address use of CNA by States: 443
failure to cooperate in investigating CNA originating in Russian territory: 442
and militarization of space: 274-75
space program: 271
Ryan, General Michael E.: 270

SAMUEL B. ROBERTS, USS: 152, 154-55
San Francisco Chronicle: 367
San Francisco Conference: 81
San Remo Manual on International Law Applicable to Armed Conflicts at Sea: 234, 452-53
SATAN (Security Administrator’s Tool for Analyzing Networks): 28
Satellite communication systems: 267, 276, 283-85, 288-89, 290-93, 380
attacks on: 380
disruption of enemy access to: 277
and information operations: 267, 380-82, 385-86

560


Computer Network Attack: Developing the Rules of Engagement

was articulated in US Navy Regulations, art. 0915 (1973) which reads: “The right of self-defense
may arise in order to counter either the use of force or an immediate threat of the use of force.”

47. SROE, supra note 26, at J-1.

48. See generally, Schmitt, supra note 15.

49. The Hague Convention of 1907, Article 22, protects human life by stating “The right of
belligerents to adopt means of injuring the enemy is not unlimited.” Convention (IV)
Respecting the Laws and Customs of War on Land, Hague, Oct. 18, 1907 reprinted in THE
LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND
OTHER DOCUMENTS 84 (Dietrich Schindler & Jiri Toman eds., 3d ed. 1988)[hereinafter
Hague IV]. Article 23(g) does the same for property by stating “[it is especially forbidden] to
destroy or seize the enemy’s property, unless such destruction or seizure be imperatively
demanded by the necessities of war.”

50. Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, art.
48., 1125 U.N.T'S. 3 (1979) [hereinafter Protocol I]. “Although the U.S. military takes the
position that an attacker should accept some responsibility to minimize collateral civilian
casualties,” the United States has not ratified Protocol I because it shifts the burden to segregate
civilians from military objectives to the attacker from its traditional situation where the defender
carried this obligation. Danielle L. Infeld, Note, Precision-guided Munitions Demonstrated Their
Pinpoint Accuracy in Desert Storm; but Is a Country Obligated to Use Precision Technology to Minimize
Collateral Civilian Injury and Damage?, 26 GEORGE WASHINGTON JOURNAL OF
INTERNATIONAL LAW AND ECONOMICS 109, 123 (1992).

51. Protocol (1), supra note 50, art. 51.

52. Charles Bickers, Combat on the Web, Far Eastern Economic Review, 16 August 2001,
www.feer.com/2001/0108_16/p030innov.html.

53. MICHAEL BOTHE ET AL, NEW RULES FOR VICTIMS OF ARMED CONFLICTS:
COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE GENEVA
CONVENTIONS OF 1949, 311 (1982).

54. Michael N. Schmitt, Bellum Americanum: The U.S. View of Twenty-first Century War and its
Possible Implications for the Law of Armed Conflict, 19 MICHIGAN JOURNAL OF INTERNATIONAL
Law 1051 (1998).

55. Protocol I, supra note 50, art. 37. See also US Navy, The Commander’s Handbook on the
Law of Naval Operations, Naval Warfare Publication (NWP 1-14M/MCWP
5-2.1/COMDTPUB 5800.7) chap. 12 (1995) [hereinafter Commander's Handbook].

56. Protocol I, supra note 50, art. 37; Hague IV, supra note 49, art. 24.

57. See Commander’s Handbook, supra note 53. See also ANNOTATED SUPPLEMENT TO THE
COMMANDER’S HANDBOOK ON THE LAW OF NAVAL OPERATIONS 507-13 ( A.R. Thomas
and James C. Duncan eds. 1999) (Vol. 73, US Naval War College International Law Studies)
[hereinafter ANNOTATED SUPPLEMENT] fora discussion of customary international law allowing
naval forces to fly false colors to deceive an enemy into believing a vessel is a neutral or friendly
prior to combat.

58. Mark R. Shulman, NOTE: Discrimination In the Laws of Information Warfare, 37 COLUMBIA
JOURNAL OF TRANSNATIONAL LAW 939, 959 (1999). But see THOMAS C. WINGFIELD, THE
LAW OF INFORMATION CONFLICT: NATIONAL SECURITY LAW IN CYBERSPACE 169 (2000)
contending that a false message from Microsoft would be lawful in that Microsoft Corporation
enjoys no protected status under international law.

59. Major General Bruce A. Wright, USA, Deputy Director for Information Operations, Joint
Chief of Staff, speaking before the Defense Colloquium on Information Operations (Mar. 24,
1999), quoted in William Church, Information Operations Violates Protocol I,
www.infowar.com.

418


Computer Networks, Proportionality, and Military Operations

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. !7 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 ofinformation systems, computer
network technology employed offensively has the potential of producing devas-
tating effects on bath 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””!8 depends not on the means and methods used, but on the resulting conse-
quences.!9 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

150


Douglas S. Anderson and Christopher R. Dooley

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 ofan 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

297


Charles J. Dunlap

world’s foremost digital power, may itself have an asymmetric advantage across
the spectrum of conflict.

To the extent news reports are reliable, the Kosovo conflict raised a number
ofinteresting issues about the use of cybertechniques during armed conflict. For
example, early in the campaign it was reported that a civilian US hacker sent a
denial-of-service e-mail “bomb” that flooded the Serb Government website
with 500,000 e-mails, crashing the site.” Is this person an unlawful combatant
under international law? Likely. A cyberterrorist? Perhaps.

Additionally, it was widely reported in the press that senior policymakers did
not approve a planned cyberassault of Milosevic’s personal bank accounts. I do
not know ifsuch a plan ever existed, let alone the reasons it was not executed.8!
Ifit did exist, however, one can imagine that a key issue would be the propriety
ofstriking the private property ofa civilian, 8? notwithstanding his position as the
head of State of a belligerent. Given the growing aversion in the international
community to the use of destructive, kinetic weapons in war that may cause ci-
vilian deaths, it may be useful to re-examine the prohibition against targeting of
civilian objects via cybertechniques if bloodshed can be avoided through this
kind of coercion. John Markoff, writing in the New York Times, argues that
“cyberwarfare raises a fundamental philosophical question . . . the biggest chal-
lenge that such warfare may pose for democratic societies is that it further blurs
the distinction between military and nonmilitary targets.”83

There are other complex issues occasioned by emerging cyber capabilities for
the armed forces ofa democracy. In the US military, IO embraces a wide range
of technology-empowered activities. Psychological operations, for example, are
important to the military commander imbued in the Clausewitzean tradition to
believe that the ability ofan adversary to wage war depends upon the support of
the “remarkable trinity” of the people, the government, and the armed forces.5+
Disassembling the enemy’s trinity, that is, undermining his will while preserving
one’s own, is an accepted military objective.85

Some emerging cybertechniques present exciting opportunities for the mili-
tary professional to sap an enemy’s resolve with relatively little violence.8° As
Hollywood has repeatedly demonstrated, the ability to use digital means to
morph or otherwise create extremely convincing—but false—images is now
widely available.8? Considering such capabilities, Thomas Czerwinski, then a
professor at the National Defense University, posed an interesting question:
“What would happen if you took Saddam Hussein’s image, altered it, and pro-
jected it back to Iraq showing him voicing doubts about his own Baath Party?”88
Quite obviously, it could deceive a population about its leaders, as Professor
Czerwinski indicates.

363


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.?7 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.?8

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.?9 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, ora combination ofboth? Ifa 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 ofan 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

153


James H. Doyle, Jr.

preserve unity of effort and consensus in waging war? Does the CNA respect the
inviolability ofneutrals 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 ofa 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 ofattack that will reduce civilian casualties and damage from
that considered likely from the CNA? Willa 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 ofa 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
bea necessary step in preparing the battlespace, and probably would not even fall
within the definition ofa 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.

157


Responding to Attacks on Critical Computer Infrastructure

UN General Assembly Resolution 2625

The United Nations General Assembly has clarified the scope of Article 2 in
two important resolutions, both adopted unanimously.? Resolution 2625, the
Declaration on Friendly Relations, describes behavior which constitutes the
“unlawful threat or use of force” and enumerates standards of conduct by which
States must abide.!° Contravention of any of these standards of conduct is de-
clared to be in violation of Article 2(4).14

UN General Assembly Resolution 3314

Resolution 3314, The Definition of Aggression, provides a detailed state-
ment on the meaning of “aggression” and defines it as “the use of armed force by
a State against the sovereignty, territorial integrity or political integrity or politi-
cal independence of another State, or in any manner inconsistent with the Char-
ter of the United Nations.” This resolution contains a list of acts which qualify
as acts of aggression. Included in the list is “the use of any weapon by a State
against the territory of another State.”!3 The resolution provides that the State
which commits an act of aggression violates international law as embodied in the
Charter.14

The actions of States or their surrogates in supporting or taking part in acts
of aggression through information technology that threaten vital national in-
terests of a State or States, whether through disruption of military infor-
mation downlinks in satellites, sabotage of vital computer networks, or infiltration
of electronic commercial transmission systems, clearly fall within the scope
of Article 2(4).15

The Relationship Between Customary International Law and the Charter

‘When the UN Charter was drafted in 1945, the right of self-defense was the
only included exception to the prohibition of the use of force. Customary inter-
national law had previously accepted reprisal, retaliation, and retribution as le-
gitimate responses as well. Reprisal allows a State to commit an act that is
otherwise illegal to counter the illegal act of another State. Retaliation is the in-
fliction on the delinquent State of the same injury that it has caused the victim.
Retribution is a criminal law concept, implying vengeance, that is sometimes
used loosely in the international law context as a synonym for retaliation. While
debate continues as to the present status of these responses, the US position has
always been that actions protective of US interests, rather than being punitive in

424


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 of fish.

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.!

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 infta-
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


Appendix

Charter of the United Nations, General Assembly Resolution 2625 (1970), which
provides in part:

+ “A war of aggression constitutes a crime against the peace for which there is
responsibility under international law.”

* “States have a duty to refrain from acts of reprisal involving the use of
force.”

+ “Every State has the duty to refrain from organizing, instigating, assisting
or participating in acts of civil strife or terrorist acts in another State or ac-
quiescing in organized activities within its territory directed towards the
commission of such acts, when the acts referred to in the present paragraph
involve a threat or use of force.”

+ “Nothing in the foregoing paragraphs shall be construed as enlarging or di-
minishing in any way the scope of the provisions of the Charter concerning
cases in which the use of force is lawful.”

NOTE: The United States has often expressed the view that most General
Assembly resolutions are only recommendations, but that in exceptional cases
particular General Assembly resolutions that are meant to be declaratory of in-
ternational law, are adopted with the support of all members, and are observed
by the practice of states, are persuasive evidence of customary international law
ona particular subject. Representatives of the United States have on several oc-
casions publicly endorsed the Declaration on Friendly Relations as one of the
few General Assembly resolutions that the United States regards as an authorita-
tive restatement of customary international law, at least until the practice of
states fails to demonstrate that they consider its principles to be legally binding.

In its 1974 “Definition of Aggression” Resolution, the General Assembly
further provided:

« Article 1. Aggression is the use of armed force by a State against the sover-
eignty, territorial integrity or political independence of another State, orin
any other manner inconsistent with the Charter of the United Nations, as
set out in this Definition.

* Article 2. The first use of armed force by a State in contravention of the
Charter shall constitute prima facie evidence of an act of aggression

477


xX

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

Louise Doswald-Beck*

Introduction

I: seems one has to accept as inevitable that when something useful for the
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
Jaw (IHL), including the law of neutrality, based on the knowledge generally
available so far on the military possibilities presented by computer networks. It




Meeting the Challenge of Cyberterrorism.

3. “Y2K” is shorthand for “Year 2000” and refers to the anomaly in some software programs
that causes dates after 1999 to be misread resulting in erroneous calculations. For information on
the Department of Defense program to address Y2K, see www.defenselink.mil/issues/
y2k.html.

4, For a discussion as to how the “Revolution in Military Affairs” (RMA) interplays with
cyberwar, see Sydney J. Freedberg, Future-Shock Troops, NATIONAL JOURNAL, December 11,
1999, ebird.dtic.mil/Dec1999/s1999121 2future.htm.

5. Foran overview of how the military intends to incorporate the RMA, see Chairman of the
Joint Chiefs of Staff, Joint Vision 2010 (1996), www.dtic.mil/jv2010/jvpub.htm.

6. “Information operations” is defined as “actions taken to affect adversary information
and information systems while defending one’s own information and information systems.”
See Chairman of the Joint Chiefs of Staff, Joint Publication 1-02, Department of
Defense Dictionary of Military and Associated Terms (2001), www.dtic.mil/
doctrine/jel/refhtm, [hereinafter JP1-02]. “Information warfare” is “information operations
conducted during time of crisis or conflict to achieve or promote specific objectives over a
specific adversary or adversaries.” Id.

7. See, e.g., Chairman of the Joint Chief of Staff, Joint Publication 3-13, Joint Doctrine for
Information Operations, ch. III (1998).

8. Tom Regan, When Terrorist Tum to the Intemet, CHRISTIAN SCIENCE MONITOR, July 1,
1999, at 1.

9. US Department of Defense Directive, Critical Asset Assurance Program (CAAP) 5160.54,
January 20, 1998, para. 4.2.

10. Department of the Air Force Doctrine Document 2-5, Information Operations, August 5,
1998, at 6.

11. Barry Colin, a senior research fellow at the Institute for Security and Intelligence, claims to
have coined the term “cyberterrorism.” See Pacific Air Force News, Terror Can Be Just a Computer
Away, Release No. 98013, February 5, 1998, www2.hickam.af:mil/news/newsarchive/1998/
98013.htm.

12. JP 1-02, supra note 6.

43. See, e.g., General Ronald R. Fogleman, Information Operations: The Fifth Dimension
of Warfare, DEFENSE ISSUES, April 25, 1995,  defenselink.mil/speeches/1995/
19950425-fogleman.html.

14. Id. at para. 4.3.

15. Id.

16. The White House, White Paper, The Clinton’s Administration Policy on Critical
Infrastructure Protection: Presidential Decision Directive 63, May 22, 1998, {hereinafter PDD
63], press release summary available at www.pub.whitehouse.gov/uri-res/I2R?um:pdi://
oma.eop. gov.us/1998/5/26/1.textl.

17. Id. at 4. & 8.

18. Id. at 10.

19. Michael Vatis, Director of the National Infrastructure Protection Center, Message from
Michael Vatis, www.fbi.gov/nipc/welcome.htm.

20. Id.

21. The AFIC home page is available at www.aia.af-mil/common/homepages/pa/bios/
iwefact.html.

22. The Navy has the Fleet Information Warfare Center website available at
www. fiwe.navy.mil/html/home.html, and the Army has the Information Assurance Directorate
website available at www.army.mil/disc4/isec/c2p/mission/mission.htm.

23, National Security Agency, Mission Statement, available at www.nsa.gov/about_nsa/
mission. html.

368


Meeting the Challenge of Cyberterrorism

incidents occur that demonstrate that the skills of the soldier are not necessarily
coterminous with those of the policeman. For example, the tragic 1997 shooting
ofa Texas high school sophomore by a Marine Corps border surveillance patrol
may well illustrate that the orientation of the armed forces leads its members to
deal with perceived threats differently than do law enforcement personnel.*#
This difference produces a very distinct approach to security problems.

Asa general rule, soldiers move on threats by fire and maneuver with a view
towards permanently eliminating them; police forces attach the presumption of
innocence towards suspected lawbreakers and seek to resolve incidents peace-
fully with the ultimate disposition left to the courts. It should be no surprise,
therefore—given the military’s perspective—that a Pentagon-sponsored report
argued that the Pentagon’s “policy of prohibiting DoD from mounting a coun-
ter cyberattack if its computers are attacked puts the military at risk.”45 In re-
sponding to the report’s proposal to allow the military to immediately launch a
counterattack, John Pike of the Federation of American Scientists quipped,
“Does this mean that the Pentagon will start frying the home PCs of American
teen-age hackers?”

According to a 1999 Harris poll,4¢ the armed forces enjoy a status as the most
trusted institution in American society. In my opinion, few activities could
jeopardize that trust more than an increased involvement in law enforcement
and related activities that cause military personnel to intrude into the lives of ev-
eryday Americans. It would not seem to make sense, therefore, to involve mili-
tary personnel in controversial proposals such as the Federal Intrusion Detection
Network (FIDNET).‘7 In an era when the US remains obliged by world events
to maintain a still sizeable military establishment, and one that is now an
all-volunteer professional force, the maintenance of harmonious civil-military
relations ought to be a prime concern of democratic leaders. This is especially so
given the troubling reports of a growing estrangement of the US armed forces
from the nation it serves, notwithstanding the public’s evident affection for
those in uniform.48

Defending Against Cyberthreats

These lessons of the past are worth considering as we develop policies on
the military’s role in fighting cyberterrorism. Most experts agree that the nature
of cyberterrorism is such that it is extremely difficult—at least initially and often
later, if ever—to distinguish between the teenage hacker on a digital joy ride,
the high-tech felon on a crime spree, the non-State cyberfanatics seeking to
intimidate, and the nation-State waging information warfare. Moreover,

358


XI

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
gtids, 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 “DARPANET,” 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.


Appendis

C. Application to Computer Network Attacks.

There is no way to be certain how these principles of international law will be
applied by the international community to computer network attacks. As with
other developments in international law, much will depend on how the nations
and international institutions react to the particular circumstances in which these
issues are raised for the first time. If we were to limit ourselves to the language of
Article 51, the obvious question would be, “Is a computer network attack an
‘armed attack’ that justifies the use of force in self-defense?” If we focused on the
means used, we might conclude that electronic signals imperceptible to human
senses don’t closely resemble bombs, bullets, or troops. On the other hand, it
seems likely that the international community will be more interested in the
consequences of a computer network attack than in its mechanism. It might be
hard to sell the notion that an unauthorized intrusion into an unclassified infor-
mation system, without more, constitutes an armed attack. On the other hand, if
a coordinated computer network attack shuts down a nation’s air traffic control
system along with its banking and financial systems and public utilities, and
opens the floodgates of several dams resulting in general flooding that causes
widespread civilian deaths and property damage, it may well be that no one
would challenge the victim nation ifit concluded that it was a victim ofan armed
attack, or of an act equivalent to an armed attack. Even if the systems attacked
were unclassified military logistics systems, an attack on such systems might seri-
ously threaten a nation’s security. For example, corrupting the data in a nation’s
computerized systems for managing its military fuel, spare parts, transportation,
troop mobilization, or medical supplies may seriously interfere with its ability to
conduct military operations. In short, the consequences are likely to be more
important than the means used.

If the international community were persuaded that a particular computer
network attack or a pattern of such attacks should be considered to be an “armed
attack,” or equivalent to an armed attack, it would seem to follow that the victim
nation would be entitled to respond in self-defense either by computer network
attack or by traditional military means in order to disable the equipment and per-
sonnel that were used to mount the offending attack. In some circumstances it
may be impossible or inappropriate to attack the specific means used in an attack
(e.g., because the specific equipment and personnel used cannot be reliably
identified or located, or an attack on the specific means used would not be effec-
tive, or an effective attack on the specific means used might result in dispropor-
tionate collateral damage). Where the specific means cannot be effectively
attacked, any legitimate military target could be attacked, including intelligence

483


Appendix

The U.S. French air traffic tribunal decision is published as Case Concerning Air
Services Agreement Between France and the United States, Arbitral Award of Decem-
ber 9, 1978, UNRIAA 417, 443-446.

The International Court ofJustice decision in Nicaragua v. United States of America
is published at 1986 I.CJ. 14.

A statement by the State Department’s Legal Advisor concerning the legal basis
for U.S. attacks on North Vietnamese forces in Cambodia is published at 62
DEPT OF STATE BULLETIN 765 (1970).
Timothy Guiden has published an extensive article on U.S. operations in Cam-
bodia: Defending America’s Cambodian Incursion, ARIZ. J. INTL & COMP L. 217
(1994).
IV: SPACE LAW
The treaties cited in this section are published as follows:
Outer Space Treaty, 18 UST 2410; TIAS 6347; 610 UNTS 205
Rescue and Return Agreement, 19 UST 7570; TIAS 6599; 672 UNTS 119
Liability Convention, 24 UST 2389; TIAS 7762; 961 UNTS 187
Registration Convention, 28 UST 695; TIAS 8480; 1023 UNTS 15
Moon Agreement, U.N. Doc. A/RES/34, 68 (1979)

Environmental Modification Convention, 31 UST 333; TIAS 9614; 1108
UNTS 151

Limited Test Ban Treaty, 14 UST 1313; TIAS 5433; 480 UNTS 13
ABM Treaty, 23 UST; TIAS 7503; 944 UNTS 13
V. COMMUNICATIONS LAW

At this writing in November 1999 the International Telecommunications Con-
vention of 1982 has not yet been published in the UST series, which is the State

527




An Assessment of International Legal Issues

Justice relied on the military exemption in Article 38 as one of several bases for
determining that the ITC does not prohibit such activity. Article 38 goes on to
say, “Nevertheless, these installations must, so far as possible, observe . . . the
measures to be taken to prevent harmful interference, and the provisions of the
Administrative Regulations concerning the types of emission and the frequen-
cies to be used, according to the nature of the service performed by such installa-
tions.” While this provision indicates that military installations do not have carte
blanche to interfere with civilian communications, the phrase “so far as possi-
ble,” read together with the specific exemption for military radio installations,
provides considerable room to maneuver for information operations conducted.
by military forces.

The ITC also provides specific authority for its member nations to interfere
with international telecommunications in certain circumstances:

* Article 19 allows members to “stop the transmission of any private tele-
gram which may appear dangerous to the security of the State or contrary
to their laws, to public order or to decency, provided that they immedi-
ately notify the office of origin of the stoppage of any such telegram or part
thereof, except when such notification may appear dangerous to the secu-
rity of the State.”

+ Article 19 also permits members to “cut offany other private telecommu-
nications which may appear dangerous to the security of the State or con-
trary to its laws, to public order or to decency.”

+ Article 20 reserves the right of members “to suspend the international tele-
communication service for an indefinite time, either generally or only for
certain relations and/or certain kinds of correspondence, outgoing, in-
coming or in transit, provided that it immediately notifies such action to
each of the other Members through the medium of the Secretary-
General.”

Finally, it seems clear that the ITC’s provisions apply primarily in peacetime.
The treaty does not specifically state how—if at all—it will apply during an
armed conflict. Nevertheless, there is ample precedent in which nations have
demonstrated conclusively that they regard the provisions of international com-
munications conventions as being suspended between belligerents engaged
in armed conflicts. Prior to the First World War, for example, all the major Eu-
ropean nations were parties to the 1884 Convention for Protection of Submarine

500


XX

Is It Time for a Treaty on
Information Warfare?

Phillip A. Johnson

Introduction

S everal participants in the conference on computer network attack held at
the Naval War College in Newport, Rhode Island, in June 1999 ad-
dressed the issue of whether serious consideration should be given in the near fu-
ture to negotiating international agreements to regulate information warfare.
The consensus appeared to be that it would be useful to expand current efforts to
improve international cooperation in investigating and prosecuting computer
crimes and “cyber-terrorism,” but that it would be premature anytime in the
near future to attempt any further prohibition or regulation of State action in the
broad area of information warfare. I generally share those views. This chapter
will discuss a number of possibilities for international agreements on informa-
tion warfare, indicate the extent of declared support for negotiations intended to
produce such agreements, and venture an opinion on their potential utility.
Some observers have said that the few calls already heard for a treaty banning
information warfare come primarily from “have-not” nations that fervently de-
sire to keep the “haves” from reaping any advantage from the information war-
fare capabilities they have developed by their effort and investment. Others say
that new agreements are necessary to enhance the international cooperation that


Yoram Dinstein

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.*> 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 asa 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),>4 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
Jaw 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 ina 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 based in State A, acting on
behalf of any chosen “cause” inimical to State B, unsupported by the govern-
ment of State A; (iii) 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

103


Meeting the Challenge of Cyberterrorism

Few would call such efforts against a totalitarian or wholly depraved regime
“cyberterrorism.” A different issue arises, I believe, when the hostile govern-
ment is a genuinely democratic one. Consider that if Internet-based vot-
ing—which the US military is experimenting with today®*—becomes
widespread, the potential exists to manipulate elections in enemy countries dur-
ing armed conflict via cybersubversion of the voting process itself.

Would such an operation be appropriate in light of US national security pol-
icy that promotes democracy?®? I do not think so, even though I am not an ad-
herent to the democratic peace theory.9! Based on my own experience in
Somalia and elsewhere, I find Professor Samuel P. Huntington’s “clash of civili-
zations” thesis far more convincing.%? I accept that there are entire societies that
hold values fundamentally different from our own—and they would freely vote
to retain those values—even though the policies they produce may lead to con-
flict with the US or other Western nations.?3 Nevertheless, I also believe that
democracy ought not to be asked to “pay for itself,” so to speak, by necessarily
producing peace.

Democracy as an expression of the principle of self-determination found in the
UN Charter and elsewhere has an intrinsic human value independent of any
peace-generating quality. Accordingly, is it right to apply cybertechniques
against an adversary’s democratic processes, even in time of war? Certainly itis appro-
priate to act to control the hostile acts ofany government, democratic or other-
wise. It seems to me, however, that care must be taken to distinguish between.
the use of cyberweapons to address the actions of a democratic government, and
employing them to undermine the democratic processes that produced it.

Michael Walzer, perhaps the premier ethicist on issues of war and peace, gives
us another matter to consider. He points out that, excluding exceptional cases
like Nazi Germany, war aims “don’t legitimately reach to the transformation of
the internal politics of the aggressor state or the replacement ofits regime.” In
other words, we must be very cautious in employing advanced digital method-
ologies that may destroy the confidence of people in democratic processes.

Consider also the other vital part of the Clausewitzean trinity: maintaining
the will of the publics of friendly countries. This is especially a concern for dem-
ocratic countries, and it was raised during the Kosovo operation. You may recall
that Serb radio and television stations were bombed in attacks highly criticized
by Human Rights Watch®7 and others.98 In my opinion, the attacks were
warranted” since it appears that the facilities were used to whip up ethnic hatred
for years.100 As Air Commodore David Wilby, a NATO spokesman, explained
on April 8, 1999, “Serb radio and TV is an instrument of propaganda and re-
pression. ... Itis. . . a legitimate target in this campaign.” 11 Since, inter alia,

364


Responding to Attacks on Critical Computer Infrastructure

© Distinctions must be made between combatants and noncombatants, to
the effect that noncombatants are spared to the extent possible.??

Because the law of armed conflict is an eminently practical law which takes
into account military efficiency, these basic principles are also consistent with
the response authorized for non-violent but equally destructive forms of coer-
cive activity, such as sabotage of critical defense computer systems. Moreover,
targeting theory is premised upon practical considerations that serve the purpose
of defining the objects of legitimate and proportional response to each variant of
aggression, whether it be an armed attack on US facilities or an equally debilitat-
ing computer-assisted attack, and of providing functional targeting criterion to
the responsible official, whether civilian or military.

Executive Order 13010

The key, then, to an effective response to the threat posed by States or groups
engaging in attacks against US critical infrastructure must be the commitment to
address the attacks they sponsor within the scope of the law of armed conflict.
We must think of cyber aggression as a variant of terrorist activity. This is pre-
cisely the approach taken by the Clinton Administration. When President
Clinton signed Executive Order (EO) 13010 on July 15, 1996, thereby estab-
lishing the President’s Commission on Critical Infrastructure Protection
(CCIP), he declared that certain designated “national infrastructures are so vital
that their incapacity or destruction . . . would have a debilitating impact on the
defense or economic security of the United States.” The eight categories of
critical infrastructure designated in the EO as requiring the development of a
national strategy for protection include: continuity of government; telecommu-
nications; transportation; electric power systems; banking and finance; water
supply systems; gas and oil storage and transportation; and emergency services
(medical, police, fire and rescue). Chaired by Robert T. Marsh, a retired Air
Force General, the CCIP was tasked with developing a comprehensive national
strategy for protecting critical infrastructures from electronic and physical
threats. On October 13, 1997, the CCIP issued the unclassified version ofits re-
port, entitled “Critical Foundations: Protecting America’s Infrastructure.” In
addition to determining the challenge of adapting to a changing culture, the re-
port found the existing legal framework inadequate to deal with threats to criti-
cal infrastructure. The centerpiece of the CCIP’s national strategy, then, is the
domestic and international legal regime required to protect against threats to
critical infrastructure. Although the report itself provides few specifics, on
May 22, 1998, the Administration issued Presidential Decision Directives
(PDD) 62 and 63 in implementation of its policy framework.

430


Appendix

significant effect on U.S. information operations conducted in the nation’s terri-
tory or involving communications routed through the nation’s communications
systems.

B. Cooperation in Investigations and Prosecutions.

It should be readily apparent that law enforcement officials cannot prosecute
an individual for conduct that is not defined as a crime in the applicable criminal
law. It may be less obvious, but equally important, that in most constitutional
governments law enforcement officials may not use their authority to conduct
criminal investigations unless the alleged conduct constitutes a crime. Ifa hacker
in Country X uses the Internet to gain access to a DoD computer in the Penta~
gon, copies sensitive data, deletes or corrupts data, and installs malicious logic,
the law enforcement officials of Country X may be able to assist in investigating
that conduct and may be able to extradite the offender to the United States only
if one or more of the hacker’s actions constitute a crime under that nation’s law.
Even where such legislation exists, the legal system may still not be able to pro-
vide either extradition or meaningful criminal punishment, as occurred in the
case ofa young Israeli hacker given a suspended sentence by an Israeli court after
he participated in a series of unlawful intrusions into DoD computer systems in
early 1998.

The domestic laws of some nations may also permit the use of devices specifi-
cally designed to frustrate attempts to trace Internet communications to their
source. Since geography is essentially irrelevant to communications on the
Internet, devices such as anonymous remailers, which strip off all information
about the originator ofa message, make it possible for a hacker located anywhere
—even in the United States or other country—to avoid identification by rout-
ing his or her message through the anonymous remailer. In this way, weaknesses
in the domestic law of one state may provide impunity to hackers everywhere.
The weakest link therefore threatens law enforcement even in countries with
robust and sophisticated laws. Accordingly, the imperative to bring domestic
laws in every nation up to a reasonable standard should be readily apparent.

C. Effect of Foreign Domestic Law on Actions of U.S. Information
Operators.

Ifa CINC ora JTF commander decides to order execution ofa certain infor-
mation operations activity by forces under his or her command who are de-
ployed in a foreign country, the commander may have to consider whether or

513


George K. Walker

note 20, at 166-67; O’CONNELL, supra note 20, at 83, 171; 2 OPPENHEIM, supra note 5, 52aa, at
156; RIFAAT, supra note 20, at 126; SIMMA, supra note 9, at 675-76; Farer, supra 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 Intemational 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, {ff 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. Ifso, this may be a violation of the alliance treaty, but thatis a
matter between the neutral and the target of aggression. Ifa 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 lavy, 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; ¢. 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, 7.3; 2
O'CONNELL, supra note 5, at 1118-19 (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 ot
other apparatus for . . . communicating with belligerent forces on land ot sea; [or] (b) Use any
installation of this kind established by them before the war on the territory ofa 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 Poweris
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 of Jurists 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, stipra 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 11 WHITEMAN, supra note 5, at
220.

38, See supra note 35.

253


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 ina 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 follows:

Indiscriminate attacks are: (a) those which are not directed at a specific military objective;
(b) those which employ a method ormeans 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 outlawed 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 lie
between them. This behavior is correctly outlawed because, in this author's view, it amounts toa
deliberate targeting of civilians, i.e., those in between the military objectives. Paragraph (b)
represents the customary rule that incidental damage (ie., 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 Viruses
in Electronic Warfare, www infowar.com/survey/virus_ew.html; Matthew Devost, The 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.nwe.
navy.mil/press/review/1998/spring/art1 - 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 Law of War in the Conduct

182


Appendix

also presumably not be considered to be an armed attack. Accordingly, the ques-
tion of the availability of the inherent right of self-defense in response to com-
puter network attacks comes into sharpest focus when the victim ofa computer
network attack considers acting in self-defense using traditional military means.
The issue may also arise if the response causes disproportionately serious effects
(e.g., if'a state responded to a computer network attack that caused only minor
inconvenience with its own computer network attack that caused multiple
deaths and injuries). As in all cases when a nation considers acting in self-defense,
the nation considering such action will have to make its best judgment on how
world opinion, or perhaps a body such as the International Court of Justice (IC)
or the UNSC, is likely to apply the doctrine of self-defense to electronic attacks.
As with many novel legal issues, we are likely to discover the answer only from
experience.

It seems beyond doubt that any unauthorized intrusion into a nation’s com-
puter systems would justify that nation at least in taking self-help actions to expel
the intruder and to secure the system against reentry. An unauthorized elec-
tronic intrusion into another nation’s computer systems may very well end up
being regarded as a violation of the victim’s sovereignty. Itmay even be regarded
as equivalent to a physical trespass into a nation’s territory, but such issues have
yet to be addressed in the international community. Furthermore, the act of ob-
taining unauthorized access to a nation’s computer system creates a vulnerabil-
ity, since the intruder will have had access to the information in the system and
he may have been able to corrupt data or degrade the operating system. Accord-
ingly, the discovery that an intrusion has occurred may call into question the re-
liability of the data and the operating system and thus reduce its utility. If an
unauthorized computer intrusion can be reliably characterized as intentional
and it can be attributed to the agents of another nation, the victim nation will at
least have the right to protest, probably with some confidence of obtaining a
sympathetic hearing in the world community.

D. An “Active Defense” against Computer Network Attacks.

A persistent foreign intruder who gains repeated unauthorized entry into a
nation’s computer systems by defeating a variety of security measures or who
gains entry into a number of computer systems may demand a different response.
Such behavior may indicate both that there is a continuing danger and that coer-
cive measures are necessary to stop the intruder’s pattern of conduct. Similarly,
there may be a right to use force in self-defense against a single foreign electronic
attack in circumstances where significant damage is being done to the attacked

485


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.” 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 “(j) 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.?4 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®® and
smart cards?”—may afford some protection, but they are hardly foolproof.?8 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.?°

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


George K. Walker

AHMED M. RIFAAT, INTERNATIONAL AGGRESSION 126 (1974); SIMMA, supra note 9, at
675-76; Tom Farer, Law and War, in3 CYRILE. 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, Terorism, 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 Intemational 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, supranote 5, §{]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: LIBER. 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 ET AL., supra note 9, at 610-14;
SIMMA, 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 tramp treaty law:
See Carin Kahghan, Jus 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; SIMMA, 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, suipra note 17, § 16, at 47-49; RESTATEMENT (THIRD), supra note 18, § 103(2)(d),
cmt. ¢, r.n.2,

22. Helsinki Principles 1.4, 3.1, 4, supra note 13, at 500, 503, 505; ANNOTATED
SUPPLEMENT, supra note 5, {ff 8.1-8.1.3; San Remo Manual, supra note 12, §{] 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, RESTATEMENT (THIRD), supra note 18, § 103.

27. Gf, Helsinki Principle 1.2 & cmt., supra note 13, at 499.

251


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 isa 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.10!

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.!°4 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!5 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).1°6 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

245


Neutrality and Information Warfare

RESTATEMENT (THIRD), supra note 18, § 521, r.n.2; NWIP 10-2, supra note 60, §]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.E.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 Anued 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, 710, reprinted in'7 AMERICAN JOURNAL OF
INTERNATIONAL LAW 153-55 (1913); Clark v. Allen, 331 U.S. 503, 513 (1947); Kanuth v. United
States, 79 U.S. 231, 240-42 (1929); Techt v. Hughes, 128 N.E. 185, 191 (N.Y.), cert. denied, 254
USS. 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, §f] 8.1-8.1.3; SAN REMO MANUAL, supra note 12, {f] 3442, 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 118. Maritime Neutrality Convention, supra note 30, art. 14, 47 Stat.
at 1993; General Declaration, supra note 30, [3(a), 3(9, at 605; Hague Air Rules, supra note 30,
art. 40, at 214; AFP 110-31, supra note 30, {| 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, 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. 11 WHITEMAN,
supra note 5, at 357-58.

84. LLCJ. Statute, art. 38(1); RESTATEMENT (THIRD), stipra 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. Ifa 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 of the
belligerent’s opponent and “must exact whatever guarantees may be required to ensure that the

260


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. III, 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 1977
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
ofall 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, stipranote 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)(iii); 57.2(b).
43, Id., arts. 35.3 & 55.1.

213


An Assessment of International Legal Issues

D. Treaties on Civil Aviation... 2... - 7. eee eee

E. Treaties on Diplomatic Relations . . .

F. Treaties of Friendship, Commerce, and Navigation... . . 508
G. Status of Forces and Stationing Agreements... ...... 508
H. UsS-Soviet Dangerous Military Activities Agreement. . . . . 510

VII. FOREIGN DOMESTIC LAWS
A. Introduction... .........0--

B. Cooperation in Investigations and Prosecutions... ... . 513
C. Effect of Foreign Domestic Law on Actions of U.S.
Information Operators .. 2... ee eee ee ee 513

VIII. IMPLICATIONS OF ESPIONAGE LAW
A. Espionage under International Law . .
B. Espionage during Armed Conflict. . .
C. Espionage in Peacetime........
D. Assessment... . 2-2-2222 e ee ee

IX. INTERNATIONAL EFFORTS TO RESTRICT

“INFORMATION WARFARE” ... 26... eee e eee teenies 520
X. OBSERVATIONS. .... 2.2... e cece eee eee eee 522
NOTES FOR FURTHER RESEARCH .........+.00000 ee 523

462


Self-Defense against Computer Network Attack

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.!2

Other adherents of this view include Hans Kelsen,!3 Louis Henkin,!+ Ian
Brownlie,!5 Hersch Lauterpacht,!© Andrew Martin,!7 and Robert Tucker.!§

Professor Randelzhofer, who authored the Chapters on Articles 2(4) and 51 in
Simmia’s exhaustive exegesis on the UN Charter,!9 also adopts, as the “prevail-
ing view,” the strict interpretation ascribed to the aforementioned scholars.”°
With respect to the specific question of whether a State has a right of anticipatory
self-defense, he acknowledges that “[t]here is no consensus in international legal
doctrine over the point.”! 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.” 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.

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.”4 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

124


Appendix

Similarly, we can make some educated guesses as to how the international le-
gal system will respond to information operations, but the direction that re-
sponse actually ends up taking may depend a great deal on the nature of the
events that draw the nations’ attention to the issue. If information operations
techniques are seen as just another new technology that does not greatly threaten
the nations’ interests, no dramatic legal developments may occur. Ifthey areseen
as a revolutionary threat to the security of nations and the welfare of their citi-
zens, it will be much more likely that efforts will be made to restrict or prohibit
information operations by legal means. These are considerations that national
leaders should understand in making decisions on using information operations
techniques in the current formative period, but it should also be understood that
the course of future events is often beyond the control of statesmen.

The actors in the international legal system are sovereign states. International
legal obligations and international enforcement mechanisms generally do not
apply to individual persons except where a nation enforces certain principles of
international law through its domestic criminal law, or in a very limited class of
serious offenses (war crimes, genocide, crimes against humanity, and crimes
against peace) that the nations have agreed may be tried and punished by interna-
tional criminal tribunals.

B. Essentials of Treaty Law.

In domestic U.S. law there are important distinctions between treaties and
executive agreements. This distinction primarily involves issues of Constitu-
tional authority within the U.S. government, but it is of little importance inter-
nationally. Treaties and executive agreements are equally binding between the
United States and the other party or parties to an international agreement. We
will use the term “treaty” in this paper as a shorthand way of referring to all forms
of legally binding state-to-state international agreements.

Treaty obligations are binding on their parties, but international law recog-
nizes certain circumstances in which a nation can regard a treaty obligation as
being suspended, modified, or terminated. The parties can always modify or ter-
minate a treaty by mutual consent. Some international agreements expire by
their own terms after a fixed period of time. Generally, unless the terms of the
agreement establish a right of unilateral withdrawal, a nation may not unilater-
ally repudiate or withdraw from a treaty unless it has a basis for doing so that is
recognized under international law. Treaty obligations are reciprocal in nature.
Ifone of the parties commits a material breach ofits obligations under the treaty,
the other may be entitled to suspend its own compliance, or to withdraw from

465


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 bello) 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 bello!”

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


Index

Dangerous Opportunity (exercise): 50
DARPANET: 219
Death penalty: 335-36
Declaration on Friendly Relations: 81
Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from Threat
or Use of Force in International Relations: 81
Defense Computer Forensics Lab: 355
Defense cooperation agreements: 387-88
Defense Information Systems Agency: 139, 266
Democracy
and manipulation of democratic processes: 364-65
and use of the military in fighting cyberterrorism: 364-67
Denial-of-service attacks: 14, 46, 229, 360, 361, 363
Department of Defense
computer systems: 149, 422-23
cyber attack exercises: 266-67
detection of cyber attacks on: 266, 267
and the Global Positioning System: 270-71, 277-78
and INMARSAT: 287
and INTELSAT: 285
and military uses of CNA: 84
Office of General Counsel: 74, 362, 375-76, 383-84
and perfidy: 206
and protection of infrastructure against CNA: 354-55
responsibility to protect space assets: 276-77
and shaping of international law: 5
space policy: 276-77
as target of CNA: 31, 78, 139, 266, 353-54
Department of Defense Directives
3100.10: 276
TS3600.1: 36, 268
Deportation: 337-38
Deputy Secretary of Defense: 31
Deva, Major General Yashwant: 53
“Developments in the Field of Information and Telecommunications and Their Impact on
International Security” (conference): 444
Dinstein, Yoram: 59, 122-23, 124-26, 136-37
Diplomatic immunity: 63, 68, 386
Discrimination, principle of: 165-72, 200-202, 205, 221, 223-26, 227, 288-90, 410-11
Doctrine
Air Force: 37, 52, 268
Amy: 37,51
for information operations: 36, 37, 41, 51, 75-76, 315, 396-97, 402-05
for Joint Operations in operations other than war: 152

547


Douglas S. Anderson and Christopher R. Dooley

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.®8 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

277


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.!7 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].”!9

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.2° Most computer network attacks are more likely to fall within the
first category than within the second.”!

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

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.LA.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 Rivista Di Diritto Intemazionale 815 (1996). For discussion, see Andrea
Bianchi, case note, 91 AMERICAN JOURNAL OF INTERNATIONAL LaW 727 (1997).

$3. See John 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
(2d ed. 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 ina
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).

348


Information Operations, Information Warfare, and Computer Network Attack

The implications of this for the proper functioning ofany 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.

Ifthe intent ofa 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 itselfis still intact, render the stuff flowing through the

46


An Assessment of International Legal Issues

Il. USE OF FORCE

Indicators that the United States considers the 1970 Declaration on Friendly Re-
lations to constitute an authoritative statement of international law include
“Statement by Richard H. Ginger, U.S. Alternate Representative to the U.N.
General Assembly,” DEPT OF STATE BULLETIN 623 (November 1970) and
“Statement by Robert Rosenstock, U.S. Representative to the Sixth Commit-
tee (Legal)” in Boyd, DicESt OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1977.

The statement by the U.S. delegation to the effect that the 1974 “Definition of
Aggression” Resolution does not constitute an authoritative statement of inter-
national law is reported at DEPT OF STATE BULLETIN 155 (February 1975).

The 1994 JCS Standing Rules of Engagement for U.S. Forces are published as
Chairman of the Joint Chiefs of Staff Instruction 3121.01. Some portions of this
publication are classified, but its discussion of the use of force in self-defense
against “hostile intent” is unclassified. At this writing in November 1999 a re-
vised version of the SROE was nearing publication. No change is expected in
the principle cited here.

The Caroline incident is reported in many texts, one of the most detailed of
which is 2 Moore, A DIGEST OF INTERNATIONAL LAW 409-414 (1906).

For an authoritative U.S. statement of the legal basis for the 1986 bombing of
Libya, see “President’s Address to the Nation,” April 14, 1986, reprinted in
“U.S. Exercises Right of Self-Defense against Libyan Terrorism,” DEPT OF
STATE BULLETIN 1 (June 1986).

A collection of authoritative U.S. statements of the legal basis for the August
1998 cruise missile attacks on terrorist camps in Afghanistan and a chemical plant
in Sudan, as well as other relevant materials, can be found at 93 AM. J. OF INT'L
LAW 161-170 (1999).

The Corfi Channel case is published at 1949 I.CJ. 4.

The Chorzow Factory decision is published at 1928 P.C.IJ. (ser. A) No. 17.

526


Contributors

Lieutenant Colonel Douglas S. Anderson, US Air Force, is presently
Senior Military Advisor, Strategic Arms Control Policy, Office of the Assistant
Secretary of Defense for International Security Policy. He has served as the
Chief of the Foreign Relations Branch, International and Operations Law Divi-
sion, Office of the Judge Advocate General, Headquarters Air Force. In that ca-
pacity, his responsibilities included advising the Air Staff and legal offices
worldwide on international, aviation, and space law. He isa graduate of the Uni-
versity of Oregon, B.S., 1978; Pepperdine University School of Law, 1981; and
the Army Judge Advocate General School, LL.M. in Military Law (International
Law specialty), 1995.

Dr. Roger W. Barnett is Professor Emeritus at the Naval War College,
where, until his retirement in September 2001, he held the Jerry O. Tuttle Mili-
tary Chair of Information Operations. He retired from the Navy as a Captain in
1984, having served in cruisers, destroyers, and headquarters staffs in Washing-
ton DC. Dr. Barnett was a member of the US delegation to strategic arms talks
with the Soviet Union in 1970-71. From 1983 to 1984 he led the Strategic
Concepts Branch of the Office of the Chief of Naval Operations. Dr. Barnett
earned a B.A. from Brown University, and M.A. and Ph.D. degrees from the
University of Southern California.

Vice Admiral Arthur K. Cebrowski, US Navy (Ret.), commanded
Fighter Squadron 41 and Carrier Air Wing 8, both embarked in USS NIMITZ
(CVN 68). He later commanded the assault ship USS GUAM (LPH 9) and, dur-
ing Operations DESERT SHIELD and DESERT STORM, the aircraft carrier
USS MIDWAY (CV 41). Following promotion to flag rank, he became Com-
mander, Carrier Group 6 and Commander, USS America Battle Group. In ad-
dition to combat deployments to Vietnam and the Persian Gulf, he deployed in
support of United Nations operations in Iraq, Somalia, and Bosnia. He served
with the US Air Force; the staff of Commander in Chief, Atlantic Fleet; the staff
of the Chief of Naval Operations, on four occasions; with the Joint Staff (as J6);
and as Director, Navy Space, Information Warfare, and Command and Control
(N6). Vice Admiral Cebrowski became the forty-seventh President of the Naval
War College in July 1998. Following retirement, in November 2001, Vice Ad-
miral Cebrowski was appointed as Director of the Office of Force Transforma-~
tion within the Office of the Secretary of Defense.


Computer Network Attacks and Self-Defense

Axticle 511). 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
“ageression” (a much broader and looser term, used, e.g., in Article 39 pertain-
ing to the powers of the Security Council!!), An armed attack is actually a partic-
ular type of aggression. This is borne out by the French text, which speaks of
“une agression armée.” 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 ofan armed attack, a min-
imal threshold has to be reached. Since Article 2(4) ofthe 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.!? 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.” 5 Ifa 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.!4
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.!6 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. Au fond, 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

100


Brian T. O’Donnell and James C. Kraska

Getting these answers is the toughest part of the process. Intelligence
might be lacking, collateral effects may not be clearly understood, and the in-
frastructure being attacked may not be fully comprehended. Uncertainty is
the order. In some ways, a CNA could be considered like a kinetic, indirect
fire weapon. Firing a weapon into an area, even during combat, without
proper intelligence, observation, and identification of valid targets is generally
unlawful.6 In much the same way, launching a CNA without sufficient un-
derstanding of the system being attacked would be improper. Add to that the
fact that the weapon itself, in this case a CNA tool, and its effects on a given
target system and other linked collateral systems may be poorly understood.
That is not to say that the CNA tool will not have been reviewed prior to be-
ing placed in inventory—for the United States and many other nations, it is a
prerequisite that a weapons review be accomplished prior to it being autho-
rized for use.6+ However, unlike a hand grenade, CNA might have different
effects depending upon the system it is launched against. Additionally, as tech-
nology changes, CNA might not have the same effect originally anticipated.
Also of concern, due to the complex nature of computer programming and
principles, is how the commander in the field will ever hope to reach the
same level of understanding as computer and policy experts. Can he rely
upon another’s judgment when he is the one “pulling the trigger” by pressing
the keyboard? Will this satisfy his requirements under international law?
What is the minimum level of knowledge the commander must possess?
Must the commander—

¢ understand what the targeted system does and how it operates?
* understand how and what CNA will do to the targeted system?

* be ina position, either through intelligence or direct observation, to judge
the effects of the attack?

* determine what other systems share or are linked to the target system and
how those other systems operate and what they control?

¢ determine what impact the CNA tool will have on the non-targeted
shared or linked system?

Blurring Lines: CNA ROE for Self-Defense

Up to this point we have concentrated mainly on CNA ROE for mission ac-
complishment. However, a brief discussion of the use of CNA in self-defense is
worthy of examination.

413


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. Afterall, 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. Itis 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
Mrespects the conditions of his reprisal raid into B, then the queen of B cansee,
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 of justice. Far-
ther along in time, reprisal raids were replaced by judicial procedures. By the

64


Douglas S. Anderson and Christopher R. Dooley

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, 1996, 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 peacefill 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. 1148, 12 U.N. GAOR Supp. (No. 18), at 195, U.N. Doc. A/3805 (1957), para.
1( (“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 peacefill purposes only . . . .”).

51. The words of a former Commander-in-Chief of USSPACECOM, General Howell M.
Estes, are indicative of this view:

I, asa 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]fthere was
evera threat to our national security [in space], the best—and only— way tosolve 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).

301


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) ofthe 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 concer 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


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.>°

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"! 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.”3? 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.53

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.>4 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 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.5+

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 ifeffectuated 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.

Non-Military 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 ina

82


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.15
Both exclusion and deportation are civil processes, designed for immigration 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.1°6

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 ofa
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,!°7 the United States Supreme Court upheld his deportation to
Northern Ireland after long and complicated legal proceedings.!°8 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.'®? 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.'!! 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


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, ifso, 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


Anthony D’Amato

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,>
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.*

65


Anthony D’Amato

some hard cash on hand thats the only thing that will get you food. And there will be riotsin 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 iflater 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


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 AIR FORCE Law REVIEW 1, 34 (1992).

62. GC II, 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,
significantand direct support of military operations and ifsuch 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 ifsuch attack is the only feasible way
to terminate such support;

(©) 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, supranote 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
Anned 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) (iii).

73. GCI, supra note 19, art. 46; GC II, supra note 19, art. 47; GC III, supranote 19, art. 13; GC
TV, 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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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.*4 Subject perhaps to very limited exceptions, abduction is illegal,*5 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 ofan 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.4 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,*” 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.!? The United
States also will not itself extradite a person to a requesting country in the absence
of an extradition treaty.5°

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.5! 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


Contributors

11th Marines, 1st Marine Division (REIN) FMF, Camp Pendleton, California.
Professor Sharp holds an LL.M. from the US Army’s Judge Advocate General’s
School; an LL.M. from Georgetown University Law Center; a J.D. from Texas
Tech School of Law; and a B.S. from the United States Naval Academy.

Mr. Daniel B. Silver is Counsel to the international law firm of Cleary,
Gottlieb, Steen & Hamilton, from which he retired as a partner in January 1997,
having served in the firm’s Washington and Brussels offices. From March 1978
to May 1979, he was General Counsel of the National Security Agency and from
May 1979 to May 1981 General Counsel of the Central Intelligence Agency. In
1998 he served as General Counsel of the House Select Committee on Technol-
ogy Transfers to the People’s Republic of China (the “Cox Committee”). He
has served as a Distinguished Visitor from Practice and Adjunct Professor at the
Georgetown University Law Center, where he has taught intelligence law and
European Communities law, among other subjects.

Mr. Jeffrey H. Smith is a partner in the law firm of Amold & Porter and
heads the firm’s Public Policy and Legislative Practice Group. In October 1996,
he rejoined the firm after serving as General Counsel of the Central Intelligence
Agency from May 1995 to September 1996. In May of 1993, Secretary of De-
fense Perry appointed Mr. Smith to the Congressionally-mandated Commis-
sion to Review the Roles and Missions of the Armed Services. Previously, he
chaired the Joint Security Commission, established by Secretary of Defense Les
Aspin and Director of Central Intelligence James Woolsey, to review security
policy and practices in the defense and intelligence communities. In late 1992
and early 1993, he served as the Chief of the Clinton Transition Team at the De-
partment of Defense.

Prior to joining Arnold & Porter, Mr. Smith served as the General Counsel of
the Senate Armed Services Committee. Prior to working for the Senate, he was
an assistant Legal Adviser at the State Department. Earlier, as an Army Judge Ad-
vocate General Officer, he served as the Pentagon’s lawyer for the Panama Canal
negotiations.

Mr. Smith is a 1966 graduate of the US Military Academy and a 1971 gradu-
ate of the University of Michigan Law School. He is also a member of the boards
of trustees of Aerospace Corporation and the Henry L. Stimson Center, and
serves as General Counsel of the Goldwater Foundation. He has lectured and
written on national security and international law, and isa member of the Coun-
cil on Foreign Relations.

Colonel James P. Terry, US Marine Corps (Ret.), is currently serving as
the Deputy Assistant Secretary (Global) in the Bureau of legislative Affairs of the
US Department of State. Immediately prior to his retirement from the US

538


Contributors

Colonel Charles J. Dunlap, Jr., US Air Force, is the Staff Judge Advo-
cate, Air Education and Training Command, Randolph Air Force Base, Texas.
He holds a B.A. from St. Joseph’s University, a J.D. from Villanova University,
an Air War College degree, and is a Distinguished Graduate of the National War
College.

Colonel Dunlap’s assignments include duties as a trial lawyer, staff officer, in-
structor, and military judge. He has served overseas in England and Korea, and
has deployed to Africa during operations in Somalia (Operation PROVIDE
RELIEF/RESTORE HOPE 1992-93), and to the Middle East (Operation
VIGILANT WARRIOR, 1994; Operation DESERT FOX, 1998). In 1992,
the Judge Advocates Association named Colonel Dunlap the US Air Force’s
“Outstanding Career Armed Forces Attorney,” and in 1996 he received the
Thomas P. Keenan, Jr. Award for contributions to international and operations
Jaw. In 2001 he was honored as the winner of the first-ever Special Operations’
Command Essay Contest. Colonel Dunlap speaks widely on national security is-
sues and is the author of many essays. He has appeared on a number of television
programs and served as a consultant for the HBO movie The Enemy Within and
for a recent BBC production about the future of war.

Colonel Phillip A. Johnson, US Air Force (Ret.), served thirty years as
an Air Force judge advocate and is currently a consultant supporting the Office
of the Assistant Secretary of Defense for Command, Control, Communications,
and Intelligence. His military assignments included service in Vietnam and Ger-
many; service as base Staff Judge Advocate at Travis Air Force Base, California; a
faculty appointment in the Department of Law at the US Air Force Academy;
service as the Staff Judge Advocate of Air Force Space Command and Legal Ad-
visor of US Space Command and North American Aerospace Defense Com-
mand; a tour as a senior appellate judge of the Air Force Court of Criminal
Appeals; service as Chief of the International and Operations Law Division in
the Office of the Judge Advocate General; and service as Associate Deputy Gen-
eral Counsel in the International Affairs Division of the Office of the General
Counsel, Department of Defense.

Lieutenant Commander James C. Kraska, JAGC, US Navy, is cur-
rently the head of the Center for Operational Law & Training in the Office of
the Navy Judge Advocate General (International and Operational Law Divi-
sion). Prior to this assignment, he served as Staff Judge Advocate for Com-
mander, Amphibious Group ONE in Okinawa, Japan and has served as the
Legal Advisor for US Commander in Chief Pacific Command’s Joint Inter-
agency Task Force West. Lieutenant Commander Kraska earned degrees from
Indiana University School of Law; School of Economics and Politics, Claremont

534


Information Operations in the Space Law Arena

a question by Senator Carlson thata 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 atall 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 peacefull 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.LA.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; see also Kunich, supra note 100,
at 136-137.

111. 42 US Code sec. 2451(a).

306


Index

Protocol I (197)
Article 44(3): 172
Article 46: 172

168-69, 193, 197, 201-02, 225-26, 410, 412
195-96, 197, 226
226-27
Article 56: 199
Article 57(2): 169
and applicability of humanitarian law: 190-91
and definition of military objective: 166-67, 168
ICRC Commentary to: 191, 196, 201-02, 203
and indiscriminate attacks: 168-69, 171, 201-02
and landmines: 194
and mercenaries: 207-08
and nature of civilian targets: 225
not ratified by the United States: 225
and perfidy: 206, 411
and principle of proportionality: 203, 225
and reprisals: 200
and restrictions on air warfare: 166
Protocol II (1977): 190, 191
Psychological warfare
forms of: 269-70, 440
as permissible operations: 195, 363, 440
proposed limitations on: 450
and UN Charter Article 2(4): 85, 87
used by the United States against Serbia: 85
Public opinion
and CNA: 296-98
and destruction of communications satellites: 296, 298
and militarization of space: 272-77, 296, 298

R
Radio broadcasting and neutral States: 236, 238
Radio communications law: 382-83
Radio Free Europe: 38
Railway rolling stock: 236
Randelzhofer, Albrecht: 124, 126, 130
Reagan, Ronald: 314, 431
Reagan Administration: 38
Registration Convention (1975): 380

559


Foreword

| 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


Appendix

contribution to the war effort, and whose destruction would provide no signifi-
cant military advantage to the attacker, are immune from deliberate attack.

* Proportionality: When an attack is made against a lawful military target, col-
lateral injury and damage to noncombatants and civilian property may be un-
avoidable. Attacks may be carried out against lawful military targets even ifsome
amount of collateral damage is foreseeable, unless the foreseeable collateral dam-
age is disproportionate to the military advantage likely to be attained. The mili-
tary advantage to be gained from an attack refers to an attack considered as a
whole rather than only from isolated or particular parts of an attack. Generally,
“military advantage” is not restricted to tactical gains, but is linked to the full
context of war strategy. The commander ordering the attack is responsible for
making the proportionality judgment. The calculus may be affected somewhat if
the enemy has failed to carry out his duty to separate his troops and equipment
from noncombatants and civilian property, since in such circumstances the de-
fender must shoulder much of the blame for any collateral damage that results. A
corollary of the principle of proportionality is that the attacker has a responsibil-
ity to take reasonable steps to find out what collateral damage a contemplated at-
tack may cause.

¢ Superfluous injury: The nations have agreed to ban certain weapons because
they cause superfluous injury. Among these are “dum-dum” bullets, projectiles
filled with glass or other nondetectable fragments, poisoned weapons, and laser
weapons specifically designed to cause permanent blindness to unenhanced
vision.

* Indiscriminate weapons: The nations have agreed to ban certain other weap-
ons because they cannot be directed with any precision against combatants.
Among these are bacteriological weapons and poison gas.

* Perfidy: The law of war provides certain visual and electronic symbols to
identify persons and property that are protected from attack. Among these are
prisoners of war and prisoner of war camps, the wounded and sick, and medical
personnel, vehicles, aircraft, and vessels. Any misuse of these protected symbols
to immunize a lawful military target from attack constitutes the war crime of
perfidy. Suppression of such acts is necessary to preserve the effectiveness ofsuch
symbols, since known misuse may lead the combatants to disregard them. For
similar reasons, it is unlawful to feign surrender, illness, or death to gain an

469


Index

lack of State practice illuminating the legal analysis of CNA under: 78
and measures of economic or political coercion: 80-82, 86-88, 89, 91-92
and Nicaragua case: 81, 83, 99
and non-military uses of physical force: 80, 82-83, 85, 87-88
and peacetime use of CNA: 74-75, 77-79, 82-94, 122, 133
provisions of: 16
and threats to the territorial integrity and independence of States: 86
and use of CNA as exercise of “force”: 74-75, 84-94, 189
and use of CNA for psychological purposes: 85, 87
and use of force against neutral States: 176
United Nations Charter Article 51
and abductions: 338-39
and collective self-defense: 112-13
and determination of whether or not an armed attack has occurred: 103, 136
International Court of Justice interpretation of: 103
legislative history of; 127
and legitimate responses to armed attacks: 107-08, 294
and principles of the Vienna Convention on the Law of Treaties: 127
and right of self-defense against armed attack: 99-114, 122-23, 294, 425
strict interpretation of: 123-32
and threat of aggression: 123-32
United Nations Committee on the Peaceful Uses of Outer Space: 273-74, 276
United Nations Convention on the Law of the Sea: 16, 237, 244-45, 246-47, 279, 384-85
United Nations General Assembly
and the Conference on Disarmament: 274, 447
and customary international law: 452
declarations: 81
and definition of “act of aggression”: 133-35
draft Russian resolution presented to the First Committee in 1998: 178-79, 362-63, 388-89,
442-44, 450, 452
and law of neutrality: 235, 245
resolutions on information warfare: 179
resolutions on the use of outer space: 272, 273-75
US speeches at: 281
UN General Assembly Resolutions
1721 (1961): 273
1884 (1963): 273
1962 (1963): 273
2625 (1970): 424
3314 (1974): 424
51/44 (1997): 273
A/52/37 (1997): 274-75
53/70 (1998): 427
United Nations Institute for Disarmament Research: 444
United Nations Security Council
and attacks on satellites: 155, 294

565


Phillip A. Johnson

Furthermore, since the Outer Space Treaty is silent as to its application during an
international armed conflict, we are left to rely on the general principles ofinter-
national law to determine the extent to which its obligations may apply in war-
time.!3 In these circumstances, there has been considerable activity in the UN
General Assembly and in the Conference on Disarmament devoted to drafting a
multilateral agreement to prevent an “arms race in space.” To date, however,
this activity has produced virtually nothing in the way of concrete results.14

The continuing impasse over attempts to develop international legal measures
to prevent an “arms race in space” might be seen as a confrontation of the “haves”
versus the “have-nots,” which might also be seen as the dynamic at work in the
impasse over proposals for complete nuclear disarmament. On the other hand,
the impasse might also be seen as reflecting the reluctance of at least some of the
thirty or so space-capable nations to participate in formulating international legal
principles concerning space control when they have yet to reach their own
judgments concerning where their own long-term national interests lie.

The analogy between space control and information warfare is less than exact,
for several reasons. One is the fact that it is many orders of magnitude easier for a
nation to develop a significant information warfare capability than it is to de-
velop space control capabilities. This is clearly demonstrated by the computer
network attacks that have already been reported in connection with such con-
flicts as Kosovo and Chechnya, and in the continuing tensions between Taiwan
and mainland China.!5 The converse is also truae—virtually every nation em-
ploys at least some automated information systems, making them vulnerable to
CNA, while only about thirty nations conduct space activities. In these circum-
stances, it seems unlikely that very many nations will regard themselves as
“non-players” in information warfare. It seems equally unlikely that many of
them will come to firm conclusions anytime soon about how their own
long-term national interests might be affected by restricting CNA or other in-
formation warfare activities. Accordingly, even a declaration of general legal
principles concerning information warfare is likely to be beyond the grasp of the
international community for the foreseeable future.

2. Ams Control Agreements. Another approach would be to negotiate agree-
ments under which the parties would commit themselves not to develop, possess,
or transfer certain information warfare capabilities, or to use them in a manner that
is destabilizing to other arms control regimes or to crisis management systems.

ASSESSMENT: This approach is subject to the same caveat stated above,
which is that not many nations—if any—have figured out where their
long-term national interest lies in relation to information warfare. It also suffers
from the great difficulty of defining exactly what capabilities the parties would

447


Is It Time for a Treaty on Information Warfare?

Notes

1. CLIFF STOLL, THE COOKOO's EGG (1989).

2. U.S. Dep’ t Justice Press Release, Statement by Attorney General Janet Reno on the Meeting
of Justice and Interior Ministers of the Group of Eight, Dec. 10, 1997. The members of the G-8 are
Canada, France, Germany, Italy, Japan, Russia, the United Kingdom, and the United States.

3.Jim Wolf, Moscow Said to Withhold Full Help on Cyber-Blitz, REUTERS, Nov. 5, 1999.

4. Daniel Verton, DoD Faces Infowar Controls, FEDERAL COMPUTER WEEK, Jan. 11,
1999.

5. Russian Federation, draft resolution, Developments in the field of information and
telecommunications in the context of international security, U.N. Doc. A/C.1/53/L.17
(1999).

6. G.A. Res. 53/70, U.N. GAOR, 53rd Sess., U.N. Doc. A/53/70 (1999).

7. Report of the Secretary General on developments in the field of information and
telecommunications in the context of international security, U.N. Doc. A/54/213 (1999), at8.

8. Id. at 11.

9. Discussion Summary, Developments in the Field of Information and Telecommunications
in the Context of International Security (Private Discussion Meeting Hosted by the Department of
Disarmament Affairs and the UN Institute for Disarmament Research, Geneva, Aug. 25-26,
1999).

10. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects, Oct. 10,
1980, S. TREATY Doc. NO. 103-25 (1993) [hereinafter Conventional Weapons Convention];
Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on their Destruction, Jan. 13, 1993, S. TREATY Doc. No. 103-21
(1993) [hereinafter Chemical Weapons Convention]; Convention on the Prohibition of the
Use, Stockpiling, Production, and Transfer of Anti-Personnel Mine’ and on their Destruction,
Sept. 18, 1997, 36 LL.M. 1507 (1997) [This agreement has not been signed by the United
States].

11. Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14,
1963, 20 U.S.T. 2941, 704 U.N.T.S. 219; Convention for the Suppression of Unlawful Seizure
of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105; Convention for the Suppression
of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 564;
Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against
Persons and Related Extortion that are of International Significance, Oct. 16, 1973, 27 U.S.T.
3949; Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 28 U.S.T. 1974, 1035
U.N.T.S. 167; Convention on the Physical Protection of Nuclear Materials, Oct. 26, 1979,
11080; International Convention Against the Taking of Hostages, Dec. 17, 1979,
11081; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation, Feb. 24, 1988, S. TREATY Doc. NO. 100-19 (1988); Convention
for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10,
1988, 27 I.L.M. 668 (1988); Protocol for the Suppression of Unlawful Acts Against the Safety of
Fixed Platforms Located on the Continental Shelf, Mar. 10, 1988, 27 I.L.M. 685 (1988);
International Convention for the Suppression of Terrorist Bombing, Nov. 25, 1997, 37 LL.M.
249 (1998).

12. Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610
U.N.T.S. 205.

454


Appendix

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 con-
ducted only by members of the armed forces. If combatant acts are conducted by
unauthorized persons, their government may be in violation of the law of war,
depending on the circumstances, and the individuals concerned are at least theo-
retically subject to criminal prosecution either by the enemy or by an interna~
tional war crimes tribunal. The long-distance and anonymous nature of
computer network attacks may make detection and prosecution unlikely, but it
is the firmly established policy of the United States that U.S. forces will fight in
full compliance with the law of war.

* Military necessity: In developed nations both military and civilian infrastruc-
tures are vulnerable to computer network attacks. During an armed conflict vir-
tually all military infrastructures will be lawful targets, but purely civilian
infrastructures must not be attacked unless the attacking force can demonstrate
that a definite military advantage is expected from the attack. Stock exchanges,
banking systems, universities, and similar civilian infrastructures may not be at-
tacked simply because a belligerent has the ability to do so. In a long and pro-
tracted conflict, damaging the enemy’s economy and research and development
capabilities may well inhibit its war effort, providing a lawful basis on which to
target such capabilities. In a short and limited conflict, however, it would be
hard to articulate any expected military advantage from attacking purely eco-
nomic targets. Targeting analysis must be conducted for computer network at-
tacks just as it traditionally has been conducted for attacks using traditional
weapons.

* Proportionality: During Desert Storm, one of the earliest targets of the
coalition bombing campaign was the electrical power system in Baghdad. Con-
sidering the important military uses being made of electricity from that system, it
was clearly a lawful military target. The Iraqi government then made a public
pronouncement that the coalition’s attack on the city’s electrical power system
constituted an act of attempted genocide. The logic of this position was that the
city’s sewage system depended on electric pumping stations, so when the elec-
tricity went out the sewage system backed up and created a threat of epidemic
disease. No one took this claim very seriously, but this incident highlights the
fact that when an attack is made on an infrastructure that is being used for both
military and civilian purposes the commander will not be in a proper position to
weigh the proportionality of the expected military advantage against the

471


Douglas S. Anderson and Christopher R. Dooley

112, See Kunich, 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 notin 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, Sce Parkerson, supra note 54, at 82; Morgan, supra note 19, at 303.

116, Rymn James Parsons, The Fight fo Save the Planet: U.S. Anned Forces “Greenkeeping” and
Enforcement of the Law Pertaining to Environmental Protection During Armed Conflict, 10 GEORGIA.
INTERNATIONAL ENVIRONMENTAL LAW REVIEW 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. Fora discussion of the 1992 ITC and 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 Peacefisl 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.

307


Vil

Computer Network Attacks
and Self-Defense

Yoram Dinstein

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.! It is currently
embedded both in the Charter of the United Nations [Article 2(4)?] 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* (i.e., a
peremptory norm of general international law from which no derogation is
permitted>), The Commission’s position was cited by the International
Court of Justice in the Nicaragua case of 1986,° and in two Separate Opinions
the peremptory nature of the proscription of the use of inter-State force was
explicitly emphasized.”

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 °) and individual or collective self-defense (consistent with


Index

Laden, Osama bin: "432
Land Information Warfare Activity: 51
Land warfare
and the law of neutrality: 235-37
and rules for railway rolling stock: 236
Lasers: 277, 382
‘Law enforcement
and assistance in gathering evidence of CNA: 340-43, 387-88
and extraterritorial arrests: 338-40
and “hot pursuit” across international borders: 337
international cooperation in: 330-44
and searches of computer data bases: 312, 329, 340-43
and threat of cyberterrorism: 359-62, 365
use of military forces for: 356-67
Law of armed conflict. See also International humanitarian law.
and activities in cyberspace: 16-17
application of principles of to CNA: 5-6, 16, 163-80, 287-90, 431-32
and information operations in space: 287-90
and notice requirements: 239-41, 243-44, 247
principles of 5-6
principles related to telegraphy: 244
prohibition on causing unnecessary suffering: 449
prohibition on the use of indiscriminate weapons: 449
and responsibilities of neutral States: 235-36
and rules of engagement: 409-12
and targeting of civilians: 66
and terrorizing of civilian populations: 66
and treaty obligations: 237, 241, 246, 247
Law of neutrality
and computer networks: 163-64, 173-78, 227
and maritime warfare: 233, 237-41
and telecommunications: 176-78
and violations of neutral territory: 178, 235-37
Law of outer space, development of: 173. See also Outer Space Treaty.
Law of the Sea Convention: 237, 244-45, 246-47, 279, 384-85
Law of War agreements: 449-50
Lebanon, bombing of US Marine facilities in: 401
LeMay, General Curtis: 66
Letters of marque and reprisal: 63-65, 68
Letters rogatory: 340, 341
Liability Convention (1972): 380
Liberation Army Daily: 378-79
Libicki, Martin: 360, 361
Libya: 333

554


John F. Murphy

bea crime under their local law.3” This requirement would also have to be met as
a condition of extradition because of the “double criminality” requirement in
virtually all extradition treaties.>8

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‘? or even the not
yet in force International Convention for the Suppression of Terrorist
Bombing*!—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. *? 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.‘

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


Appendix

I, INTRODUCTION
A. Sources and Application of International Law.

International law consists of binding legal obligations among sovereign states.
Two of the basic principles of the international legal system are that sovereign
states are legally equal and independent actors in the world community, and that
they generally assume legal obligations only by affirmatively agreeing to do so.
The most effective instruments in creating international law are international
agreements, which may be either bilateral or multilateral. Some of these agree-
ments, such as the United Nations Charter, establish international institutions
that the parties agree to invest with certain authority. It is also generally accepted
that there is a body of customary international law, which consists of practices
that have been so widely followed by the community of nations, with the under-
standing that compliance is mandatory, that they are considered to be legally
obligatory.

International institutions have legislative authority to create legal obligations
for nations only when their member nations have agreed to give them that au-
thority. The most prominent example is the power of the UN Security Council
to pass resolutions requiring individual nations to perform or refrain from certain
actions in order to protect or restore international peace and security in the con-
text ofa particular situation. The decisions of the International Court of Justice
are binding upon nations that have accepted the jurisdiction of the Court and are
parties to litigation before it. Other international institutions can also be given
the power to impose binding obligations upon nations that agree to submit to
their authority. In addition, certain actions of some international institutions,
such as the International Court of Justice and the UN General Assembly, are
considered to be persuasive evidence of the existence of principles of customary
international law.

As with domestic law, the primary mechanism that makes international law
effective is voluntary compliance. Also as with domestic law, the threat of sanc-
tions is often required as well. The international legal system provides institu-
tional enforcement mechanisms such as international litigation before the
International Court of Justice and other judicial and arbitral tribunals, as well as
the right to petition the United Nations Security Council to authorize coercive
measures to protect or restore international peace and security. The interna-
tional legal system also provides self-help enforcement mechanisms such as the
right to use force in individual and collective self-defense and the right in some
circumstances to repudiate treaty obligations which have been violated by

463


An Assessment of International Legal Issues

foreseeable collateral damage unless the commander has made a reasonable effort
to discover whether the system is being used for civilian purposes that are essen-
tial to public health and safety. This principle operates in exactly the same way
whether the attack is carried out using traditional weapons or in the form of a
computer network attack.

As stated above, the law of war places much of the responsibility for collateral
damage on a defending force that has failed to properly separate military targets
from noncombatants and civilian property. When military officials decide to use
civilian infrastructure for military purposes (or vice-versa), they ought to con-
sider the fact that such action may make that infrastructure a lawful military tar-
get. There may be no choice, as when military traffic has to move on civilian
highways and railroads. There may be little alternative to military use of civilian
communications systems, since it is impractical to put into place dedicated mili-
tary communications systems that have sufficient capacity to carry all military
communications. Where there is a choice, however, military systems should be
kept separate from infrastructures used for essential civilian purposes.

Military command and control systems have long been recognized as lawful
military targets. Civilian media generally are not considered to be lawful military
targets, but circumstances may make them so. In both Rwanda and Somalia, for
example, civilian radio broadcasts urged the civilian population to commit acts
of violence against members of other tribes, in the case of Rwanda, or against
UN-authorized forces providing humanitarian assistance, in the case of Somalia.
When itis determined that civilian media broadcasts are directly interfering with
the accomplishment of a military force’s mission, there is no law of war objec-
tion to using the minimum necessary force to shut them down. The extent to
which force can be used for purely psychological operations purposes, such as
shutting down a civilian radio station for the sole purpose of undermining the
morale of the civilian population, is an issue that has yet to be addressed authori-
tatively by the international community.

* Superfluous injury: We are not aware that any weapon or device yet con-
ceived specifically for use in information operations has any potential for causing
superfluous injury, but new systems should always be reviewed with an eye to
their potential for causing catastrophic and untreatable injuries to human beings
to an extent not required by military necessity.

* Indiscriminate weapons: The prohibition on indiscriminate weapons may
apply to information operations techniques such as malicious logic, as when

472


“Weapons like to Lightning”

and (4) the United States did not necessarily want to encourage other nations to
develop an anti-satellite weapon system given its own heavy reliance on satel-
lites. In contrast, supporters of anti-satellite programs argued that the United
States should have the ability to attack opposing States’ satellites and should in-
vest in defending its own satellites.

By the early 1990s, anti-satellite technology had moved away from missiles
and toward lasers. Congress first prohibited and then later allowed the use of ap-
propriated funds fora test ofa laser against an orbiting satellite. In October 1997,
the US Army tested its MIRACL laser against an aging satellite. While the Army
tried to construe the test as purely defensive in nature (namely to observe the ef-
fects of a laser on satellites in order to generate information for protecting satel-
lites), a public uproar followed. President Clinton subsequently used his
then-existing line-item veto authority to strike funds from the fiscal year (FY)
1998 DoD Authorization Act for projects related to an anti-satellite and space
control program. Subsequently, following the Supreme Court’s ruling that the
line-item veto was unconstitutional, Congress approved funds for anti-satellite
weapons in the FY 1999 DoD Authorization Act.3? Accordingly, itis likely that
the increased use of space-based systems as instruments in information warfare
will engender criticism from opponents of anti-satellite weapons systems, who
will argue that the United States should not further militarize space. However,
the assumption in 1999 by US Space Command of responsibility for information
operations signals that the military will likely integrate space-based systems into
information operations.*?

International Telecommunications Law and Information Operations

International telecommunications law is a web of bilateral and multilateral
treaties.41 The 1992 ITU Convention‘? is the preeminent treaty in this area,
with over 130 signatories. This convention and others established the In-
ternational Telecommunications Union (ITU), a specialized agency of the
United Nations with the authority to formulate telegraph and telephone regula-
tions which become binding legal obligations after formal acceptance by ITU
members.

Article 45 of the ITU Convention states that all radio stations, “whatever
their purpose, must be established and operated in such a manner as not to cause
harmful interference to the radio services or communications of other Members
or of other duly authorized operating agencies, which carry ona radio service, and
which operate in accordance with the provisions of the Radio Regulations.”
Annex 2 of the Convention defines harmful interference as “interference which

382


Anthony D’Amato

become one of our vital national interests. It will be something we will have to
protect in the event ofa 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.

Thope 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—foodstuff 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 ofan 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 ifthe 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.

69


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,. ifthe neutral allows one belligerent to
bring prizes to one of its ports, it must allow the other belligerent the same
rights.3° 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 ofan 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.*° 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.*!

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.

176


James P. Terry

warfare, were negotiated, the drafters thereof did anticipate technological
change. The “Martens Clause,” included within both Hague Convention II
1899, and Hague Convention IV 1907, provides that even in cases not explicitly
covered by specific agreements, civilians and combatants remain under the pro-
tection and authority of principles of international law derived from established
custom, principles ofhumanity, and the dictates of public conscience, and there-
fore are not left to the arbitrary judgment of military commanders. This provi-
sion was considered necessary to prevent future unnecessary and/or
disproportionate destruction from weapons systems not yet developed. The
drafters had just witnessed unimaginable carnage in the Crimean War and the
American Civil War resulting from advanced rifling techniques and other inno-
vations, and were cognizant that warfare was rapidly changing. As Greenberg, et
al., so accurately state, as a result of the Martens Clause, “attacks will be judged
largely by their effects, rather than by their methods.”5

The Legal Parameters for Response

UN Charter System

The existing legal regime available to deter destructive actions through
computer technology includes the United Nations Charter system and cus-
tomary international law. The basic provision restricting the threat or use of
force in international relations is Article 2, paragraph 4, of the Charter. That
provision states: “All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political inde-
pendence of any state, or in any manner inconsistent with the Purposes of the
United Nations.”6

The underlying purpose of Article 2(4), to regulate aggressive behavior be-
tween States, is identical to that ofits precursor, the Covenant of the League of
Nations. Article 12 of the Covenant stated that League members were obliged
not to “resort to war.”? This terminology, however, left unmentioned actions
which, although clearly hostile, could not be considered to constitute acts of
war. The drafters of the UN Charter wished to ensure that the legal niceties of
aconflict’s status did not preclude cognizance by the international body. Thus,
in drafting Article 2(4), the term “war” was replaced by the phrase “threat or
use of force.” The wording was interpreted as prohibiting a broad range of
hostile activities including not only “war” and other equally destructive con-
flicts, but also applications of force of a lesser intensity or magnitude.®

423


Daniel B. Silver

Strauss, Kosovo: After the War: Clinton Orders “Cyber-sabotage” to Oust Serb Leader, SUNDAY
‘TELEGRAPH, July, 4, 1999, at27; Gregory L. Vistica, Cybenvar and Sabotage, NEWSWEEK, May 31,
1999, at 38.

3. John Markoff, Cybenvarfare 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 Cybenvar, 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 “[aJll 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 51. UN Charter, art. 51.

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 ofhostile activities by non-State actors).

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

11. 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
orin 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 ofa 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)

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, ifnot 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 ofscholarly opinion supports the negative view," 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.”° 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:

80


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 194912 and the Hague Conven-
tion of 1954,!3 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
fora lengthy period would not be just “unpleasant”—it could easily lead to mass
disease, starvation and other catastrophes! (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 ina 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 51(4).!5 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

168


Louise Doswald-Beck

difficult because of the immense difficulty ofbeing 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 ofmaking mistakes as to whether something really is at that momenta
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 ifsuch 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 concernas 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.?”

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


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??? 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.*° 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


Information 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
information, 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


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.


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

223


IV

Information Operations, Information
Warfare, and Computer Network Attack
Their Relationship to National Security in the

Information Age

Daniel T. Kuehl"

Introduction

\ Ny 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.


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 7 AMERICAN JOURNAL OF
INTERNATIONAL LAW 153-55 (1913); Clark v. Allen, 331 U.S. 503, 513 (1947); Kamuth 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); George B. Davis, The Effects of War Upon
Intemational 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 Attomey
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. Sce 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, at5; 1 OPPENHEIM, supra note 17, §§ 10, at 28, 11, at32-36; RESTATEMENT (THIRD), supra
note 18, § 102(3) & cmt. £

57. Hague V, supra note 30, art. 5, 36 Stat. at 2323; Hague XII, 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, supranote
30, arts. 42, 47, at 214-15; AFP 110-31, supra note 30, 9 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, 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. Ifan 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); 3 HYDE, 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


An Assessment of International Legal Issues

The focus of self-defense analysis is on events as they unfold, and not as they
might have been if different budgeting and acquisition decisions had been made
sometime in the past. Ifsuch systems are in place, however, their apparent effec-
tiveness should be taken into account in deciding whether active defense mea-
sures are necessary. This does not mean that a nation has no right of self-defense
where a first attempted intrusion fails, or even when a series of intrusions fail. If
an attacker is permitted to continue mounting a campaign of such attacks it may
learn by trial and error, it may employ other capabilities, or it may stumble onto a
point of vulnerability. Just as an infantry unit exercising the right of self-defense
may pursue a force that breaks off an attack and attempts to retreat until the at-
tacker ceases to be a threat, decisions on taking measures of self-defense against
computer network attacks must take into account the extent to which an at-
tacker continues to present a threat of continuing attacks.

Another possible implication of a defender’s technological prowess may arise
when a nation has the capacity for graduated self-defense measures. Some
may argue that a nation having such capabilities must select a response that will
do minimal damage. This is a variant of the argument that a nation possessing
precision-guided munitions must always use them whenever there is a potential
for collateral damage. That position has garnered little support among nations
and has been strongly rejected by the United States. There is broad recognition
that the risk of collateral damage is only one of many military considerations that
must be balanced by military authorities planning an attack. One obvious con-
sideration is that a military force that goes into a protracted conflict with a policy
of always using precision-guided munitions whenever there is any potential for
collateral damage will soon exhaust its supply of such munitions. Similarly, mili-
tary authorities must be able to weigh all relevant military considerations in
choosing a response in self-defense against computer network attacks. These
considerations will include the probable effectiveness of the means at their dis-
posal, the ability to assess their effects, and the “fragility” of electronic means of
attack (i.e., once they are used, an adversary may be able to devise defenses that
will render them ineffective in the future). In the process ofreasoning by analogy
to the law applicable to traditional weapons, it must always be kept in mind that
computer network attacks are likely to present implications that are quite differ-
ent from the implications presented by attacks with traditional weapons. These
different implications may well yield different conclusions.

It may be possible to specify certain information systems that are vital to na-
tional security—both government systems and key civilian infrastructure sys-
tems. This process should serve both to give such systems high priority for
security measures and also to identify a class of systems any attack on which

490


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. Sce 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, stpra 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:

Ifa 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 peacefiul 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 thatactivity. 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 ofanother 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 Peacefil 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
Judicial Meaning of the Term “Peacefitl” 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 LL.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 119, 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, Intemational 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

305


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 ofinformation asa
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.!! 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.!2

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-
tines, 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. Alll 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


Brian T. O’Donnell and James C. Kraska

prove to be adaptable to CNA ROE. In “dormant ROE,” a set of pre-authorized
supplemental or mission-specific rules becomes effective upon some triggering
event or receipt of a specialized code word. This method has the advantage of
commanders being able to see in advance the level at which authorizations will be
given depending upon how a particular mission develops, rather than waiting for
change to occur during the mission. This avoids the commander having to address
ROE that are suddenly inadequate, and ameliorates the need for additional rules in
the midst ofa crisis. It would also let the military personnel involved in the mission
train for a change in ROE with the actual rules that would apply. Personnel famil-
iar with US and Australian ROE will quickly point out that while the American
ROE are permissive in nature and US commanders feel comfortable with broad
grants of authority without the need to have specific grants of authority, the Aus-
tralian rules are more restrictive. However, in dealing with CNA, US command-
ers should expect more restrictions. When a commander is granted authority to
employ CNA, a limited authorization will most likely be the norm. This will be
the case until such time as decision makers become more comfortable with this
new method of warfare, and the ROE mature. One way to accomplish this, with-
out actual use in a conflict, is to better integrate CNA into war games and exer-
cises. In the last two years in particular, ROE addressing computer network attack
and defense have begun to enter the exercise lexicon. Unfortunately, war games
and exercises still rarely contain an ROE development phase where supplemental
tules are discussed and developed. The concepts should be gravitating more
quickly from the national or theater levels to the operational and battle group lev-
els. It is even rarer for the CNA procedures and effects to be explained, or the rules
for their employment to be debated in the fleet. The highly classified nature of
CNA serves to exacerbate this problem.

Training and Gaming ROE

Over the last two decades, the rules of engagement have matured consider-
ably. Captain J. Ashley Roach, USN (ret.) recognized the need for greater un-
derstanding of ROE and practice prior to conflict when he wrote nearly twenty
years ago:

There is a very real need for greater knowledge of rules of engagement on the part
of strategy and policy personnel, tacticians and operators, and even by our civilian
leaders. At present these rules are rarely, if ever, exercised and too few planners
and commanders seek contingent approval for additional or relaxed rules.44

407


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.

11. 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). Fora 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 Intemational Anned Conflicts at Sea and the Need for Its Revision, in THE LAW OF
NAVAL WARFARE; A COLLECTION OF AGREEMENTS AND DOCUMENTS 1, 6-12 (Ronzittied.
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, ¢,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.

249


International Law, 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.® 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.? 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.

Iam 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.®

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

68


Douglas S. Anderson and Christopher R. Dooley

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.'74 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

291


Appendix

introduce weapons and human conflict. There is a germ of truth in this notion,
supported by high flights of rhetoric in international fora, but the existing treaty
restrictions on military operations in space are in fact very limited. These restric-
tions are included in both the space treaties listed above and in various arms con-
trol agreements.

The Outer Space Treaty provides that the parties will not “place in orbit
around the Earth any objects carrying nuclear weapons or any other kinds of
weapons of mass destruction, install such weapons on celestial bodies [i.e., the
moon, planets, and asteroids], or station such weapons in outer space in any
other manner.” The treaty permits placing in orbit weapons other than nuclear
weapons and other weapons of mass destruction. Also, the treaty contains no
prohibition against nuclear weapons transiting outer space, as long as they do not
enter into an earth orbit and they do not explode in outer space.

The Outer Space Treaty also prohibits the establishment of military bases, the
testing of weapons, and the conduct of military maneuvers on the moon or other
celestial bodies. It permits these activities in orbit around the Earth, and in other
places in outer space. Similarly, there is no prohibition against establishing mili-
tary space stations or operating other satellites with offensive or defensive
capabilities.

The Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and
Under Water (the Limited Test Ban Treaty, 1963) prohibits all nuclear explosions
in outer space, Accordingly, a party to this agreement may not lawfully explode
a nuclear device in outer space in order to disable an adversary’s satellites by
means of the electro-magnetic pulse generated by a nuclear explosion, or by its
other effects. A nation operating its own satellite systems is unlikely to take such
an action in any event, since its own satellites would be subject to the same ef-
fects as those belonging to its adversary.

The Treaty on the Limitation of Anti-Ballistic Missile Systems (the ABM Treaty,
1972) provides that no party may “develop, test or deploy space-based ABM sys-
tems or components.”

Under a 1997 theater missile defense (TMD) agreement not yet ratified by
the Senate, the United States and Russia have agreed not to place in space theater
missile defense interceptor missiles “or space-based components based on other
physical principles, whether or not part ofa system, that are capable of substitut-
ing for such interceptor missiles.”

A number of arms control agreements provide that no party will interfere
with the others’ “national technical means of verification.” Translated, this
means no interference with the orbiting imaging systems used to monitor the
strategic arms of another party.

495


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 “[tJhe 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.
43.1.4).

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 I.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
Il, 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/policy/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, 14 U.S.T. 1313, 480 U.N.T.S.
43, T.LA.S. 5433 (entered into force October 10, 1963).

93. 18 U.S.T. 2410, T.LA.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

304


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.4?

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.”59

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

130


Horace B. Robertson , Jr.

answers this question in the negative by invoking a doctrine which he labels as
“interceptive self-defense.” 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
uponan irreversible course of action, thereby crossing the Rubicon.”!° 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 51 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 51 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

123


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

Arthur K. Cebrowski

IT 21 and Network-Centric Warfare

A: 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


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
asa 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.?? 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.”23
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).”2+
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

268


“Weapons like to Lightning”

whether as belligerents or as neutrals.”5° It also notes that many provisions of
the convention are inconsistent with wartime circumstances and, therefore,
the Chicago Convention would be unlikely to survive as a complete entity in
the event of an armed conflict. However, Article 89 does not provide ade-
quate guidance in ascertaining what provisions of the Chicago Convention
are applicable during an armed conflict and thus what limitations exist on in-
formation operations in wartime.

Treaties on Diplomatic Relations

The 1961 Vienna Convention grants to diplomatic missions the right of in-
violability of the premises and its documents and communications. The con-
vention also requires that diplomatic personnel respect the laws and
regulations of the State in which they are stationed and that “premises of the
mission must not be used in any manner incompatible with the functions of
the mission as laid down in the present Convention or by other rules of gen-
eral international law or by any special agreements in force between the send-
ing State and the receiving State.”° As the DoD/GC Paper concludes,
“Planning for any information operations activity that involves diplomatic
premises, persons, archives, documents, or communications, either as an in-
strument or as a target of the operation, must take into account these interna-
tional legal obligations.”®! ,

Treaties of Friendship, Commerce and Navigation (FCN)

These bilateral agreements between the United States and other nations es-
tablish arrangements for tourism, trade, transportation, and other routine and
practical issues. According to the DoD/GC Paper, such treaties probably would
be suspended in the event of armed conflict. However, to the extent that infor-
mation operations are utilized in peace-time, decisionmakers must take into ac-
count obligations incurred in FCN treaties to the extent they will impact
information operations. For example, one could imagine the scenario in which
the targeted nation will attribute the information operation to criminal elements
or to economic espionage and will request assistance from the United States un-
der the FCN treaty (or under mutual legal assistance agreements and extradition
agreements)in response to such information operations. US officials need to be
prepared to respond to such a request even when the information operation is a
military or intelligence operation.

386


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:

[Tyhe 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
isno more “inherent” in sovereignty than the discredited right to resort to force at
all times.?8

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

125


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 ofhow deeply imbedded within
modern societies such control systems have become, and how unaware most of
us are of their functioning."

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).?? But as
perhaps the key element in information warfare, is the computer network the
target, or merely the means to the target?

43


VII Self-Defense against Computer Network Attack under
International Law

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

X Some Thoughts on Computer Network Attack and the
International Law of Armed Conflict
Louise Doswald-Beck .. 2.2... eee eect teens 163

XI Wired Warfare: Computer Network Attack and the Jus in Bello
Michael N. Schmitt... 0.0.2... 0.6 c cece eee eee eee e eee 187

XII Proportionality, Cyberwar, and the Law of War
Ruth G. Wedgwood... 2... eee eee cette eens 219

XII Neutrality and Information Warfare
George K. Walker... 0. cece ce cece eee 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
David M. Crane 2.2... eee cece ence teen eens 311

XVI Computer Network Attacks by Terrorists:
Some Legal Dimensions
John F. Murphy .. 2.0... eee eect 321

XVII Meeting the Challenge of Cyberterrorism:
Defining the Military Role in a Democracy
Charles J. Dunlap, Jr... 6... 353

XVIII “Weapons like to Lightning”
US Information Operations and US Treaty Obligations
Jeffrey H. Smith and Gordon N. Lederman ......-.-..0--+0-5 375

vi


Jeffrey H. Smith and Gordon N. Lederman

endangers the functioning of a radionavigation service or of other safety services
or seriously degrades, obstructs or repeatedly interrupts a radiocommunication
service operating in accordance with the Radio Regulations.”44 The DoD/GC
Paper recognizes that jamming or spoofing a radio navigation service would vio-
late this provision.*> Therefore, the ITU Convention and the entire telecom-
munications multilateral treaty regime would seem to limit information
operations that involve interference with radio broadcasting.

Still, as the paper notes, Article 48 of the ITU Convention provides an ex-
emption for military operations: “Members retain their entire freedom with re-
gard to military radio installations of the Army, Naval, and Air Forces.”46 Article
48 continues, “[n]evertheless, these installations must, so far as possible, ob-
serve .. . the measures to be taken to prevent harmful interference, and the pro-
visions of the Administrative Regulations concerning the types of emission and
the frequencies to be used, according to the nature of the service performed by
such installations.”47 The DoD/GC Paper also notes that, in July 1994, the De-
partment of Justice’s Office of Legal Counsel relied on Article 48 in deciding
that the United States could broadcast messages to the Haitian people from mili-
tary aircraft and international air space urging them not to flee Haiti by sea in
hazardous vessels.48

The ITC also allows signatory States to interfere with international telecom-
munications in certain circumstances. Article 34 allows members to “stop the
transmission of any private telegram which may appear dangerous to the security
of the State or contrary to its laws, to public order or to decency, provided that
they immediately notify the office of origin of the stoppage of any such telegram
or part thereof, except when such notification may appear dangerous to the se-
curity of the State.”4? In addition, States may “cut offany other private telecom-
munications which may appear dangerous to the security of the State or contrary
to its laws, to public order or to decency.”59 And finally, Article 35 allows mem-
bers “to suspend the international telecommunications service for an indefinite
time, either generally or only for certain relations and/or for certain kinds of
correspondence, outgoing, incoming or in transit, provided that it immediately
notifies such action to each of the other Members through the medium of the
Secretary-General.”5! The ITC provisions do not state whether the treaty ap-
plies during armed conflict. However, as the DoD/GC Paper notes, there is pre-
cedent that international communications treaties are suspended during armed
conflict. During World War I, for example, the British Navy cut Germany’s ma-
jor submarine cables despite the existence of the 1884 Convention for Protec-
tion of Submarine Cables. It should be noted, however, that the United States
may have entered into bilateral communications agreements with particular

383


An Assessment of International Legal Issues

another party. An aggrieved nation may always withdraw from voluntary rela~
tionships involving diplomatic representation and most kinds of commerce.
Even the right to publicly complain about another nation’s illegal behavior may
provide an effective enforcement mechanism ifsuch complaints generate diplo-
matic costs for the offending nation.

Chief Justice Oliver Wendell Holmes once wrote, “The life of the law has
not been logic; it has been experience.” It seldom happens that a legislature fore-
sees a problem before it arises and puts into place a legislative solution before it is
needed. More typically, legislators react to a problem that has already manifested
itself. The international legal system operates in the same manner. The interna-
tional community ordinarily does not negotiate treaties to deal with problems
until their consequences have begun to be felt. This is not all bad, since the solu-
tion can be tailored to the actual problems that have occurred, rather than to a
range of hypothetical possibilities. One consequence, however, is that the re-
sulting law, whether domestic or international, may be sharply influenced by the
nature of the events that precipitate legal developments, together with all their
attendant policy and political considerations.

The development of international law concerning artificial earth satellites
provides a good example. If the nations had sat down with perfect foresight and
asked themselves, “Should we permit those nations among us that have access to
advanced technology to launch satellites into orbits that will pass over the terri-
tories of the rest of us and take high-resolution imagery, eavesdrop on our tele-
communications, record weather information, and broadcast information
directly to telephones and computers within our borders?”, a very restrictive
regime of space law might have resulted. Instead, what happened was that the
first satellites launched by the Soviet Union and the United States were seen as
entirely benign devices engaged in scientific research, and it was also perfectly
clear that no nation had the capability to interfere with them as they passed over
its territory. In these circumstances, it quickly became accepted customary inter-
national law, soon enshrined in the Outer Space Treaty, that objects in orbit
were beyond the territorial claims of any nation, and that outer space is available
for exploitation by all.

The history of space law contrasts sharply with that of air law. Much of the
early development of heavier-than-air aviation coincided with the First World
War, during which the military power of aircraft for collecting intelligence, at-
tacking ground forces, and bombing enemy cities was clearly demonstrated. The
result was a highly restricted regime of air law in which any entry into a nation’s
airspace without its permission was to be regarded as a violation of its sover~
eignty and territorial integrity.

464




Index

Neumann, Peter G.: 29-30
Neutral airspace: 241
Neutral ports and waters: 237-41
Neutral States
and actions taken to protect neutrality: 235-36, 237-38, 241-42, 246
prohibitions on the actions of: 173-78, 236, 237
and railway rolling stock: 236
responsibilities of: 173-78, 227, 235-36, 237-38, 242, 246-47
rights oft 174-75
and unfriendly acts: 242
and weaponization of space: 274
Neutrality, Law of. See Law of Neutrality.
New Zealand: 275
Newsweek: 360
Ng v. Canada: 336
Nicaragua: 81, 135
Nicaragua case: 81, 83, 99, 104, 130, 135
Nincie, Djura: 123-24, 127
Nonbelligerent status: 245
Non-military uses of physical force and UN Charter Article 2(4): 82-83, 85, 87-88
North Atlantic Treaty Organization
attack on Belgrade: 68, 196-97, 378
attacks on e-mail system during Kosovo conflict: 46, 267, 360, 378
and bombing of Kosovo: 190, 364-65, 378
and bombing of Yugoslavia: 65, 203-04, 208
intervention in Serbia: 93, 270, 378
press conferences by: 65
and psychological warfare against Serbia: 85
Norway: 53
NSFNET: 9-10
Nuclear weapons
and international space law: 279, 380-81
and threat to civilian populations: 223
Nuclear Weapons Advisory Opinion of the International Court of Justice: 103, 109, 113, 189

Oo

Office of Management and Budget: 149

Office of Net Assessment: 36

Omnibus Diplomatic Security and Antiterrorism Act of 1986: 324
Open source intelligence: 312

Operation ALLIED FORCE: 190, 203-04, 208, 267, 270-71, 356
Operation EARNEST WILL: 152-53

Oppenheim, Lassa: 173-75

Organization of American States: 442, 444, 452

557


Contributors

University in Claremont, California; and Mississippi State University. He is the
author of more than ten articles on foreign affairs and international law.

Professor Daniel T. Kuehl teaches military strategy and national security
policy in the Information Resources Management College at National Defense
University in Washington, DC. He is the Director of the Information Strategies
Concentration Program, a specialized curriculum for selected students at the
National War College and Industrial College of the Armed Forces, in which he
teaches on national security in the information age, the law of war, the strategic
use of the Internet, and information warfare and strategy. He retired as a Lieu-
tenant Colonel in 1994 after nearly 22 years active duty in the US Air Force. In
his final assignment at the Air Staff he was part of the “Checkmate” planning
team that in August 1990 developed the “Instant Thunder” plan for a strategic
air campaign against Iraq, after which he served as chief of the Air Staff division
which supported the Secretary of the Air Force’s landmark Gulf War Air Power
Survey (GWAPS). Professor Kuehl has edited or written several books and
numerous publications, and serves on the editorial board of the Joint Force Quar-
terly. He is on the faculty of the American Military University. He earned a
Ph.D. in History from Duke University.

Mr. Gordon N. Lederman is a member of the Amold & Porter law firm’s
public policy/legislative group, and practices in the fields of government rela-
tions (focusing on national security affairs, especially cybersecurity and
bioterrorism) and international litigation. He is a magna cum laude graduate of
both Harvard College and Harvard Law School and clerked for the Honorable
Robert E. Cowen of the Third Circuit Court of Appeals. Mr. Lederman’s book
on the Defense Department’s organizational politics, entitled Reorganizing the
Joint Chiefs of Staff: The Goldwater-Nichols Act of 1986, was published in
1999. Former Senator Sam Nunn wrote the book’s foreword. He also is the
co-author of a May 2001 Center for Strategic and International Studies (CSIS)
report entitled Combating Chemical, Biological, Radiological, and Nuclear
Terrorism: A Comprehensive Strategy. Finally, Mr. Lederman is the founder
and co-chair of the Council on Foreign Relations’ study group on new national
security threats.

Lieutenant Colonel Perry G. Luzwick, US Air Force (Ret.), is Di-
rector, Information Assurance Architectures at Northrop Grumman Informa-
tion Technology, a Northrop Grumman company. He is a senior consultant
throughout the corporation for Information Operations (IO), Information As-
surance (IA), Information Superiority, Critical Infrastructure Protection, and
Knowledge Management (KM) from conceptualization through design and
implementation. In his last assignment with the US Air Force, he served as

535


An Assessment of International Legal Issues

* Many stationing agreements authorize or even obligate the visiting force to
use the receiving state’s military and civilian communications systems. Com-
monly, there are obligations that any U.S. use of host nation communications
systems must not cause interference and that such use must be in accordance
with host nation laws and regulations. The potential for information operations
to cause interference with the host nation’s communications system and the pos-
sible application of host nation laws and regulations must be carefully consid-
ered, along with the fact that the conduct of offensive information operations
through host nation communications systems may subject them to possible
countermeasures and acts of self-defense in peacetime, and may make them le-
gitimate military targets during an armed conflict.

Finally, ifa host nation discovers that its territory and facilities have been used
without its knowledge as a base for U.S. information operations of a nature that
may tend to involve it against its will in a conflict or dispute, U.S. diplomatic and
military relationships with the host nation are likely to suffer. The host nation
could well take the view that in principle there is little difference between using
an ally’s territory to launch air strikes and using it to launch computer network
attacks or other information operations activities. As a practical matter, com-
puter network attacks are much more difficult to identify, trace, and attribute.
However, it will not always be impossible to do so, particularly when informa-
tion on such attacks is available from intelligence sources. Accordingly, deci-
sions concerning whether to conduct information operations from the territory
ofan ally, and especially whether to do so without the host nation’s knowledge
and consent, must be made at senior policy levels.

H. U.S.-Soviet Dangerous Military Activities Agreement.

During the Cold War there were a number of incidents in which U.S. and
Soviet forces followed each other closely in international waters and airspace, es-
pecially during military exercises, and sometimes physically interfered with each
other’s operations. Lest these incidents inadvertently escalate into an armed con-
frontation, on June 11, 1988 the Chairman of the Joint Chiefs of Staff and the
Soviet Chief of General Staff issued a joint statement in which they declared
their intent to avoid dangerous military activities in the vicinity of each other,
and on July 11, 1988 the United States and the Soviet Union signed the Agree-
ment on the Prevention of Dangerous Military Activities. In Section 1(d) of Article II
of that agreement, the parties agreed that, when operating in proximity to per-
sonnel and equipment of the armed forces of the other party during peacetime,

510




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 Intemational 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 215 century, see FUTURE WARFARE ANTHOLOGY (Robert
H. Scales ed., 2000). On the specific issue of information and conflict, see STEVEN METZ, ARMED
CONFLICT INTHE 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


James H. Doyle, Jr.

between jus ad bellum and jus in bello by implementing the inherent right of
self-defense and providing guidance for the application of force to accomplish
the mission.2° 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 isso crucial.

Although the CNA may not rise to the level ofa 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.”?! 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

151


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 ona paper
or ona 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 ofall their vitality. There is no use having any rules
oflaw 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 fora 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. Anda classic example ofa
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


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 comerstone 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 Jaw 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


Information Operations, Information Warfare, and Computer Network Attack

34. See DOMINANT BATTLESPACE KNOWLEDGE (Stuart J. Johnson & Martin C. Libicki, eds.,
1995); DAVID S. ALBERTS, JOHN J. GARSTKA, & FREDERICK P. STEIN, NETWORK CENTRIC
‘WARFARE: DEVELOPING 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. Fora 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. Afterall, 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


Self-Defense against Computer Network Attack

invasion or attack, or any annexation by the use of force of the territory ofanother
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 ofanother State;

(©) The blockade of the ports or coasts ofa State by the armed forces of another State;

(d) Anattack by the armed forces ofa State of the land, sea or air forces, marine and
air fleets of another State;

(©) The use ofarmed forces of one State, which are within the territory ofanother
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;

() The action ofa 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 ofaggression
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.

While the term “act ofaggression” 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.’ 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 bea part of the organized military forces ofa
State. As indicated above, the General Assembly’s “Definition of Aggression”

134


An Assessment of International Legal Issues

and military leadership targets, as long as the purpose of the attack is to dissuade
the enemy from further attacks or to degrade the enemy’s ability to undertake
them.

There has been some support for the proposition that a nation has an inherent
right to use force in self-defense against acts that do not constitute a classic armed
attack. This view is supported by the inclusion in the General Assembly’s defini-
tion of aggression of acts that do not entail armed attacks by a nation’s armed
forces, such as the unlawful extension of the presence of visiting forces, or allow-
ing a nation’s territory to be used by another state “for perpetrating an act of ag-
gression against a third State.” (See pages A-8—A-11 above). U.S. practice also
support this position, as demonstrated in the 1986 bombing of Libyan command
and leadership targets to persuade Libya to stop sponsoring terrorist attacks
against U.S. interests, and in the 1993 attack on the Iraqi military intelligence
headquarters to persuade Iraq to desist from. assassination plots against former
President Bush. A contrary view was expressed in the International Court ofJus-
tice’s 1986 ruling in Nicaragua v. U.S. that the provision of arms by Nicaragua to
the leftist rebels in El Salvador did not constitute an armed attack on El Salvador,
so it could not form the basis of a collective self-defense argument that would
justify armed attacks in response, such as laying of mines in Nicaraguan waters or
certain attacks on Nicaraguan ports, oil installations and a naval base—acts that
were “imputable” to the United States. The Court also said it had insufficient
evidence to determine whether certain cross-border incursions by Nicaraguan
military forces into the territory of Honduras and Costa Rica constituted armed
attacks. The extent to which Nicaragua’s conduct would justify El Salvador and
its ally the United States in responding in ways that did not themselves constitute
an armed attack was not before the Court. The opinion of the court nevertheless
provides some support for the proposition that the provocation must constitute
an armed attack before it will justify an armed attack in self-defense. It seems safe
to say that the issue of whether traditional armed force may be used in self-de-
fense in response to provocations that are not technically regarded as armed at-
tacks is far from settled, and that the positions taken by states may be sharply
influenced by the nature of the events concerned, together with all attendant
policy and political considerations.

By logical implication, to the extent that a nation chooses to respond to a
computer network attack by mounting a similar computer network attack of its
own, the issue of whether the initial provocation constituted an armed attack
may become a tautology. If the provocation is considered to be an armed attack,
the victim may be justified in launching its own armed attack in self-defense. If
the provocation is not considered to be an armed attack, a similar response will

484


Index

of economic assets: 196-97, 222
evaluation to assure that objects selected are military objectives: 166-68, 170-71, 195-97,
198-99, 202, 223, 228, 288-90, 295, 403, 412, 421-22, 434
“industrial web” theory of: 48
and the ICRC: 196
Jaw of: 156, 193-94, 429-30
and need to distinguish between combatants and noncombatants: 156, 200-201, 202, 288,
363, 403, 410-11, 412, 423, 429-30
of non-military objectives: 195, 223
precision of: 220, 224
and principle of discrimination: 200-201, 205, 221, 223-26, 227, 288
prohibitions on targeting civilians and civilian objects: 66, 197-98, 199, 225, 412, 423,
429-30
and proportionality during war: 169-70, 202-04, 221, 224~26, 430
of space communications systems: 294-95
specifically protected objects: 199-200, 449-50
US view of: 196
of war industries: 222
Technological development and warfare: 47-50
Technological siege warfare: 169
Telecommunications
and acquisition of information about the enemy: 8
interference with: 284-87, 292-93, 296
and law of neutrality: 176-78
treaties: 244, 246
Telecommunications facilities
attacks on: 288-89
and neutral States: 237, 288-89
Telecommunications satellites: 41, 283-85
destruction of: 294-95, 296
interference with the placement of: 293-94
military reliance on: 149-50
Telecommunications treaties: 16-17, 283-85, 291, 292-93, 294-95, 382-84
Telematics: 40-41
Terrorism.
and CNA: 228-29, 323-44, 430, 431-32
criminal law used to respond to: 228-29, 332-44, 433, 442-43, 444-45
Terrorist attacks
prevention of: 325-29
response to: 325-26
and the right of self-defense: 103, 104, 108, 111-12, 431-32, 433-34
Terrorists
appeal of CNA to: 4, 353-54
prosecution of: 324-25, 445
State sponsoring of: 103, 104, 111-12, 327
technical capabilities of: 327

563


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.55 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 nota 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
“ntegrate 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
1O, 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


An Assessment of International Legal Issues

IV. SPACE LAW
A. Introduction.

International law regulating activities in outer space is important to the infor-
mation operator because space segments are critical to so many important infor-
mation systems. These systems perform such functions as communications relay,
imagery collection, missile warning, navigation, weather forecasting, and signals
intelligence. In fact, it can be said that at the current stage of space activity, the
exclusive functions of both military and civilian satellites are to gather and relay
information. In the conduct of information operations, there will be strong im-
peratives to interfere with the space-based information systems belonging to an
adversary, and to defend one’s own.

One approach to attacking space systems is by targeting their ground stations.
Another approach is to jam or “spoof” their communications links. Such actions
are subject to the normal international law principles governing other terrestrial
activity. Sometimes, however, it may be more effective to attack the satellite or
satellites that form the space segment of the system. As we will see, activities in
space are subject both to general principles of international law and to a number
of treaty obligations that apply specifically to space activities.

B. Space Law Treaties.

There is probably no other field of human endeavor that produced so much
international law in such a short period. Within twenty years after the first Sput-
nik launch in 1957, international diplomatic conferences produced four major
widely-accepted multilateral space law treaties. Taken together, these treaties
provide the foundations of existing space law.

* The Treaty on Principles Governing the Activities of States in the Exploration and
Use Of Outer Space, including the Moon and Other Celestial Bodies (the Outer
Space Treaty, 1967)

* The Agreement on the Rescue of Astronauts, Return of Astronauts, and the Return
of Objects Launched into Outer Space (the Rescue and Return Agreement,
1968)

* The Convention on International Liability for Damages Caused by Space Objects
(the Liability Convention, 1972)

492


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:

Irecall 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 everythings in order. .. .” Butno 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, at A-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-11. 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
ofmany offensive capabilities is significantly improved by early employment, potential intelligence
collection sources and access should be developedas 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., Southem 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 Chief 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.

31. Joint Vision 2010 states that information superiority is a key force multiplier and operational
capability in future battlespace, providing fall 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 Ai; The Evolution of the US Intelligence Community-An

320


Contributors

Military Assistant to the Principal Deputy Assistant Secretary of Defense for
Command, Control, Communications, and Intelligence (ASD(C3))). Lieuten-
ant Colonel Luzwick earned an M.A. and was a Distinguished Graduate, in
Computer Resources Management from Webster University; an MBA from
the University of North Dakota; and a B.S., Psychology from Loyola Univer-
sity of Chicago. He was an Adjunct Faculty member for the University of
Maryland, the City Colleges of Chicago, and NSA’s National Cryptologic
School. He is a member of Shockwave Writers.com and a 1998 member of the
International Who’s Who of Information Technology.

Professor John F. Murphy is Professor of Law at Villanova University. In
addition to teaching, his career has included a year in India ona Ford Foundation
Fellowship, private practice in New York and Washington, DC, and service in
the Office of the Assistant Legal Adviser for United Nations Affairs, US Depart-
ment of State. He was previously on the law faculty at the University of Kansas,
and has been a visiting professor at Cornell University and Georgetown Univer-
sity. From 1980-1981 he was the Charles H. Stockton Professor of International
Law at the US Naval War College.

Professor Murphy is the author or editor of several books and monographs,
and is also the author of numerous articles, comments, and reviews on interna-
tional law and relations. Twice the recipient of the Ethel and Raymond F. Rice
Prize for faculty scholarship at the University of Kansas Law School, as well as a
recipient of the Certificate of Merit from the American Society of International
Law in 1992, Professor Murphy has served as consultant to the US Departments
of State and Justice, the ABA Standing Committee on Law and National Secu-
tity, and the United Nations Crime Bureau, and has testified before Congress on
several occasions. He is currently the American Bar Association’s Alternate Ob-
server at the US Mission to the United Nations.

Lieutenant Commander Brian T. O’Donnell, JAGC, US Navy, is the
Legal Advisor for International and Operational Law at the Navy Warfare De-
velopment Command (NWDC), the Navy’s center for integrating advanced
concepts, doctrine and emerging technology into the US fleet. Prior to his tour
at NWDC, he has served as a military professor of International Law at the Naval
War College and Deputy Fleet Judge Advocate, Commander, US SEVENTH
Fleet, forward deployed in Yokosuka, Japan on board USS BLUE RIDGE
(LCC 19). He served as the Navy Senior Prosecutor in Yokosuka, Japan, as the
Staff Judge Advocate for Naval Air Station North Island (NASNI), Coronado,
California, and as Deputy Staff Judge Advocate on board USS ABRAHAM
LINCOLN (CVN 72). Lieutenant Commander O’Donnell is a graduate of the
University of Richmond School of Law and Virginia Polytechnic Institute and

536


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| | Months
ship, which then sails to London and taken by
horse and courier to the King - and return reph

1850 Message from New York to San Francisco via Weeks
telegraph and the Pony Express

1925 Message from Washington, DC to Tokyo via Days
high frequency radio

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 (TW) 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 [W.

8


“Weapons like to Lightning”

and computer networks or the computers in computer networks themselves.”!3

Information operations include a whole host of weapons, including Electro
Magnetic Pulse (EMP) and directed energy weapons (such as lasers and high-
energy radio frequency guns).

Bureaucratic barriers may have obstructed the conduct of US information
operations during the Gulf War and the Bosnia operations.!4 However, the
United States did conduct information operations in the 1999 NATO air cam-
paign against Serbia. Army General Henry H. Shelton, Chairman of the Joint
Chiefs of Staff, confirmed that the US used information warfare against Serbia
during the Kosovo campaign when he stated that “you can assume that we in
fact employed some of our systems, yes.”!5 Yet, the DoD’s after-action report
on the air war noted that “the conduct of an integrated information operations
campaign was delayed by the lack of both advanced planning and strategic
guidance defining key objectives.”!6 Indeed, the DoD apparently was con-
cerned about the legalities of full-scale information operations against Serbia, as
well as the untested nature of the information warfare arsenal; as a result, the
information operations were apparently constrained. Also, the relative decen-
tralization of Serbian computer systems limited the potential for success of in-
formation operations. US military forces apparently did confuse and disable the
Serbian air defense system using information operations, but these attacks orig-
inated with electronic jamming aircraft rather than over computer networks
from ground-based sources.!7

The United States, of course, is a prime target of foreign information opera-
tions. Lieutenant General William Donahue, the Air Force’s Director of Com-
munications and Information, reportedly stated that, during the Kosovo air
campaign, hackers from Chinese Internet addresses targeted NATO networks
after NATO’s accidental bombing of the Chinese Embassy in Belgrade.18

Other countries also recognize the growing and critical importance of infor-
mation operations. For example, the Chinese military reportedly recognizes and
hopes to exploit the potential offered by information operations. On Novem-
ber 2, 1999, Major General Chang Chia-Sheng, director of the simulation cen-
ter under the Chinese Ministry of National Defense, stated at a news conference
that China would be able to launch information warfare against Taiwan by
2005.19 An article entitled “Bringing Internet Warfare Into the Military System.
is of Equal Significance with Land, Sea, and Air Power,” in Liberation Anny
Daily, the official daily newspaper of the People’s Liberation Army’s General
Political Department, reportedly stated that it was likely that another Chinese
military branch, a so-called net force, would be needed to conduct information
operations. The article was quoted as saying, “Modern High-Tech Warfare

378


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.>

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.‘ 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


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, 37 HARVARD
INTERNATIONAL LAW JOURNAL 272, 288-89 (1996); Michael Schmitt, Computer Network Attack
and the Use of Force in Intemational Law: Thoughts on a Nonnative 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. Id. at 911.

74, Id. at 912.

75. Id. at 917.

76. Id.

77. 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. Ina 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


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.

232


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 ofauthority 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 ofa 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.?+
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


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.LA.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 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 “[uJntil 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/2000/1/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)4i).

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

231


David Tubbs, Perry G. Luzwick, 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 overa
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

i1


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.”5° 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.5” 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. 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.®

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.®2 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. It
isa 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.

132


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 along time, if
ever, before the practice of States, decisions of the International Court of Justice
(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.2° 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.2! 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.?2 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

78


An Assessment of International Legal Issues

belligerent nation demanded that the U.S. government deny GPS navigation
services to its enemy, and if the U.S. were unable or unwilling to comply, the
belligerent may have the right to take necessary and proportional acts in
self-defense, such as jamming the GPS signal in the combat area.

International consortia present special problems. Information systems built
around space-based components require such huge investments and access to
such advanced technology that even developed nations prefer to share the costs
with other nations. Where an international communications system is devel-
oped bya military alliance such as NATO, few neutrality issues are likely to arise.
Other international consortia, however, provide satellite communications and
weather data that are used for both civilian and military purposes, and they have
a breadth of membership that virtually guarantees that not all members of the
consortium will be allies in future conflicts. Some current examples are
INTELSAT, INMARSAT, ARABSAT, EUTELSAT, and EUMETSAT.
NATO operations in the Federal Republic of Yugoslavia in the Spring of 1999
present a striking case in which EUTELSAT, the majority of whose member-
ship is comprised of NATO members, after two months of the bombing cam-
paign, agreed to stop broadcasting Serbian television programs hostile to the
NATO mission. The broadcasting at issue materially contributed to the cam-
paign of Serbian human rights violations and thus was deemed inconsistent with
EUTELSAT principles.

Some readers may recall that there was an issue among the members of the
INMARSAT consortium providing mobile communications services as to
what use could be made of the system by the members’ military forces under a
provision of the INMARSAT agreement stating that the mobile communica-
tions service provided by the system could be used “exclusively for peaceful pur-
poses.” This issue has largely disappeared because of the recent privatization of
the INMARSAT system. The agreements establishing the new privatized sys-
tem continue to provide that the management and board of the new
INMARSAT must “have regard to” certain principles, including “acting exclu-
sively for peaceful purposes, taking into account the past practices of the Organi-
zation and the practice of the Company,” and that “[t]he Company shall act
exclusively for peaceful purposes.” However, this language establishes no en-
forceable obligation, and no legal remedy is provided for any third party. A re-
cent opinion by the Office of General Counsel of COMSAT, which continues
to represent the United States in the new INMARSAT, notes that neither
INMARSAT or INTELSAT have ever denied service to the military forces ofa
member nation, and it concludes, “COMSAT envisions no circumstances in

474


Information Operations in the Space Law Arena

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, SPACE DAILY, Feb. 13, 1998, at 2; see also Morgan, supra note
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
US.T. 3813, T.LA.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 L.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
“Peacefiul 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 Il), 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 [X(2), Treaty Between the United States of America and

308


Douglas S. Anderson and Christopher R. Dooley

Positioning System (GPS).4° 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.*! 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 ofspace 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.‘? China has a rapidly devel-
oping space program, as does Japan, India, Brazil, and, of course, Russia.
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. The US Landsat and the French SPOT [Systeme Pour I’ 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.4© 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.*” A further example of the public com-
mercial availability ofspace 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

271


An Assessment of International Legal Issues

PREFACE

This assessment of international legal issues in information operations reflects
the combined efforts of a superb team of Department of Defense lawyers. It
could not have been produced without the contributions of representatives of
the General Counsels of the Army, Navy, Air Force, the National Security
Agency and the Defense Information Systems Agency, as well as the Judge Ad-
vocates General of the military services and the Legal Counsel to the Chairman
of the Joint Chiefs of Staff. Their insight, wisdom and persistence have not only
been of great value but have reflected exceeding well on themselves and their of-
fices. The principal draftsman, Phillip A. Johnson (Colonel USAF, Retired), is
owed a note of special appreciation; his scholarship and dedication were truly
extraordinary.

This second edition contains a number of editorial changes, refers to several
events that have occurred since publication of the first edition, including a brief
discussion in Section II of EUTELSAT’s actions during the 1999 NATO
bombing campaign in Yugoslavia, adds a paragraph in Section VI concerning
the U.S.-Soviet Dangerous Military Activities Agreement, and—by popular
demand—adds Section XI, Notes for Further Research.

460


Brian T. O’Donnell and James C. Kraska

29, Id. See also A.R.Thomas, Joint Tactical Command and Control Course on Rules of
Engagement (Feb. 25, 2000)(unpublished, on file with authors). The Task Group Commander is.
attributed as telling the pilots not to worry about the definition of hostile intent since that was the
Admiral’s job. The pilots were directed to just relay all Libyan aircraft information, such as
armaments, maneuvering, speed, etc., back to the Admiral who would decide if the aircraft were
hostile. Interestingly, Professor Grunawalt discussed this with commander years after the operation
and he indicated that it was not his intent to limit the pilots’ right of self-defense. The authority to
respond to hostile intent is founded upon the theory of anticipatory self-defense under
international law. For a historical discussion of anticipatory self-defense see G. K. Walker,
Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Have Said, 31 CORNELL
INTERNATIONAL LAW JOURNAL 321 (1998). See also YORAM DINSTEIN, WAR, AGGRESSION
AND SELF-DEFENCE (3d ed. 2001) for a discerning distinction between “anticipatory”
self-defense, which he indicates is not permitted, and “interceptive” self-defense which is
permissible under Article 51 of the UN Charter.

30. Bradd C, Hayes, Naval Rules of Engagement: Management Tools for Crisis (RAND, CA),
July 1989, at 14 citing DAVID C. MARTINE AND JOHN WALCOTT, BEST LAID PLANS: THE
INSIDE STORY OF AMERICA’S WAR AGAINST TERRORISM 121 (1988).

31, JOHN ELLIs, SOCIAL HISTORY OF THE MACHINE GUN 16-20. (1975).

32, F.W. VON MELLENTHIN ET AL., NATO UNDER ATTACK 12-13 (1984).

33. Id.

34. ERIC MORRIS ET AL., WEAPONS & WARFARE OF THE TWENTIETH CENTURY,
131-132 (1975).

35. See MARTIN VAN CREVELD, TECHNOLOGY AND WAR: FROM 2000 B.C. TO THE
PRESENT (1991); JOHN KEEGAN, THE FACE OF BATTLE (1976).

36. John Arquilla et al., Networks, Netwar, and Information-Age Terrorism, reprinted in JAN O.
LESSER ET AL., COUNTERING THE NEW TERRORISM 54 (1999).

37. Id.

38. Id.

39, Id. at 55.

40. SROE, supra note 26, at L-1.

41. Joint Chiefs of Staff, Joint Pub. 1-02, DoD Dictionary of Military and Associated Terms, 88
(2001), www.dtic.mil/doctrine/jel/refhtm.

42, During the authors’ experiences with several USCINCPAC bi-lateral exercises with US
Pacific Command Partner Nations in the Western Pacific from 1999-2001, communications
difficulties and the rapid pace of the exercises made it more difficult to obtain rapid approval of
supplemental ROE requests.

43, Exercise TANDEM THRUST is a biennial Australian-US exercise held in the Pacific and
uses a common set of classified ROE called the Combined Rules of Engagement (CROE) for
Australian and US forces (on file with authors).

44, J. Ashley Roach, Rules of Engagement, NAVAL WAR COLLEGE REVIEW 46, Jan—Feb.
1983. See also F. M. Lorenz, Rutles of Engagement in Somalia: Were They Effective?, 42 NAVAL LAW
REVIEW 62 (1995).

45. Roach, supra note 44, at 49. The central question by US Navy commanders was, “Do I
have to take the first hit?” This question was definitively answered in the negative by Captain
Roach in his article, nonetheless, it took more than a decade for commanders to fully internalize
this rule,

46. Id., citing toT. Wood Parker, Thinking Offensively, US NAVAL INSTITUTE PROCEEDINGS,
Apr. 1981, at 29 (footnote omitted). See also George Bunn, International Law and the Use of Force in
Peacetime: Do U.S. Ships Have to Take the Fist Hit?, NAVAL WAR COLLEGE REVIEW 69-80,
May-Jun. 1986. Also of note is that some eight years earlier authority to respond toa threat of force

417


Computer Network Attack: Developing the Rules of Engagement

The 2000 SROE position on actions for self-defense seems to be clear:
“These rules do not limit a commander’s inherent authority and obligation to
use all necessary means available and to take all appropriate actions in self-de-
fense of the commander’s unit and other US forces in the vicinity.”®

It follows, then, that if CNA has been placed into the available inventory of
‘weapons, it would be available for actions in self-defense, subject only to au-
thorization by higher authority. Does the novelty of the weapon or the peri-
odic comparison of CNA to a weapon of mass destruction (WMD) alter the
conditions precedent for the exercise of self-defense, namely necessity and
proportionality?” If the CNA use conforms to the four LOAC principles,
then characterizing CNA as a WMD is a dubious analogy. Although CNA is,
at least for the present, a novelty, it does not require creation of an entirely
new ROE. The unfamiliarity with CNA, the secrecy with which it is treated,
and, perhaps most importantly, the misperceptions it may cause, could in-
crease provocation and escalation. The SROE already stretches to accommo-
date these considerations.® However, taking CNA off the table for
self-defense may be restricting an otherwise valid option for self-defense. If
specifically tailored, CNA has the potential to remove or counter a hostile act
or hostile intent threat in a “human-friendly” fashion. Unlike a kinetic
weapon, CNA can disable systems without injuring civilians.

Concluding Comment

This chapter focuses on the process of developing rules of engagement for
CNA within the greater context of the international law of armed conflict. It
does not address the general lawfulness of CNA in international law, except as it
bears on use of force, targeting, and the ROE process. That question is largely
academic, often lying outside the immediate needs of the operational com-
mander and forward-deployed judge advocate. Moreover, much of the analysis
to date, tends toward the theoretical and thus is of greater interest and utility to
scholars than operational commanders.

By offering some practical principles for developing ROE, we hope to be-
gin closing the gulf between theoretical discussions of CNA and its opera-
tional application by theater and task force commanders. The ROE process
includes developing the rules within the context of the law, doctrine, and
force structure, as well as the boundaries of the mission. During the develop-
mental process, and throughout the application of CNA across the conflict
spectrum, the commander should be personally involved. ROE drive CNA
and have a dispositive effect on the political and military landscape.

414


Index

status if captured: 171-72, 198
subject to criminal law: 172, 387-88
training for: 328
Computer recording devices: 12
Computer security technology: 15, 28, 149-50, 328, 361
COMSAT: 285, 286-87
Conference on Disarmament: 274-75, 447
Contraband law: 238-39
Convention for Suppression of Unlawful Acts Against the Safety of Civil Aviation: 331
Corfis Channel case: 103-04
Council of Europe, and cybercrime treaty: 229, 344, 442, 444, 452
Counterdrug activities: 339-40, 357-58
Counterintelligence: 313, 315
Covenant of the League of Nations: 423
Creveld, Martin Van: 366
Criminal behavior, international CNA as: 78, 323-44, 442-45
Criminal Jaw
and civil law countries: 333-34
and common law countries: 333, 334
and CNA: 228-29, 332-37, 442
and hackers: 179
and information operations from US bases abroad: 387-88
international cooperation regarding: 330-44, 387-88, 389, 442-45
“Critical Foundations: Protecting America’s Infrastructure”: 430
Cuba: 444, 450
Cuban Missile Crisis: 132
‘Customary international law
development of: 439-40, 452-53
and espionage: 67, 68, 101
and extraterritorial arrests: 339-40
and Law of the Sea Convention: 384-86 -
and non-military uses of physical force: 83
and peacefal uses of outer space concept: 274
and reprisals: 200
requirements of: 16, 423
and the right of self-defense: 109-10, 130, 425, 426
and UN General Assembly resolutions: 452
Cybercrime
international cooperation in law enforcement efforts: 331-44, 442-45
negotiations for a convention on: 229-30, 344, 445
Cybermercenaries: 54
Cyberspace, definition of 39-40
Czerwinski, Thomas: 22, 363

546


James P. Terry

nature, offer the greatest hope of securing a lasting, peaceful resolution of inter-
national conflict.16

The right of self-defense was codified in Article 51 of the Charter. That article
provides: “Nothing in the present Charter shall impair the inherent right of indi-
vidual or collective self-defense if an armed attack occurs against a Member of
the United Nations. . . .”!7 The use of the word “inherent” in the text of Article
51 suggests that self-defense is broader than the immediate Charter parameters.
During the drafting of the Kellogg-Briand Treaty, for example, the United
States expressed its views as follows:

There is nothing in the American draft of an anti-war treaty which restricts or
impairs in any way the right of self-defense. That right is inherent in every
sovereign state and is implicit in every treaty. Every nation is free at all times and
regardless of treaty provisions to defend its territory from attack or invasion and it
alone is competent to decide whether circumstances require recourse to war in
self-defense.18

Because self-defense is an inherent right, its contours have been shaped by
custom and are subject to customary interpretation. Although the drafters of Ar-
ticle 51 may not have anticipated its use in protecting States from destructive ac-
tions perpetrated through technological means, international law has long
recognized the need for flexible application. Former Secretary of State George
Shultz emphasized this point when he stated that: “The UN Charter is not a sui-
cide pact. The law is a weapon on our side and it is up to us to use it to its maxi-
mum extent.”!9 The final clause of Article 2(4) supports this interpretation and
forbids the threat or use of force “in any manner inconsistent with the Purposes
of the United Nations.”20

The late Professor Myres McDougal, of Yale Law School, has placed the rela~
tionship between Articles 2(4) and 51 in clearer perspective:

Article 2(4) refers to both the threat and use of force and commits the Members to
refrain from the “threat or use of force against the territorial integrity or political
independence of any state, or in any manner inconsistent with the Purposes of the
United Nations;” the customary right of self-defense, as limited by the requirements
of necessity and proportionality, can scarcely be regarded as inconsistent with the
purpose of the United Nations, and a decent respect for balance and effectiveness
would suggest thata conception ofimpermissible coercion, which includes threats of
force, should be countered with an equally comprehensive and adequate conception
of permissible or defensive coercion . . . .24

425


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: C4I 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 Pattem 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 Fratricde, 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, JEDI Returns
for JSCOPE’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 $-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, The Guts Behind the Glory, 21:5 SURFACE WARFARE,
Sept./Oct.1996, at 2-7.

160


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 ofloss are difficult to make and for that reason often lack credibil-
ity. Ifa 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!

Notes

1. Distinctions have been made in the literature of information warfire 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, Foran extended discussion, see Roger W. Bamett, Information Operations, Deterrence, and the
Use of Force, NAVAL WAR COLLEGE REVIEW, Spring 1998, at 7-19.

32


VI

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

Daniel B. Silver

Introduction

Ave 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 evena 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


An Assessment of International Legal Issues

The quotation from Chief Justice Holmes appears in THE COMMON LAW
(1881).

Discussions of the effect of war on treaty obligations can be found in the
following:

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES, Vol. I 218-222 (1986)

Whiteman, DIGEST OF INTERNATIONAL LAW, Vol. 14 490-510 (1970)

Lester B. Orfield & Edward D. Re, CASES AND MATERIALS ON
INTERNATIONAL LAW 68-78 (1955)

Tan Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 616-617
(1990)

There have been relatively few books and articles published to date addressing
international legal issues in information operations. Among these are:

M.E. Bowman, Is International Law Ready for the Information Age? 19
FORDHAM INT'L. L. J. 1935 (1996)

Lawrence T. Greenberg, Seymour E. Goodman & Kevin J. Soo Hoo, OLD
LAW FOR A NEW WORLD? THE APPLICABILITY OF INTERNATIONAL LAW
TO INFORMATION WARFARE (1997). Published as a monograph by the In-
stitute for International Studies, Stanford University, and in revised form in
1998 by the Institute for National Strategic Studies, National Defense Uni-
versity, the latter under the title INFORMATION WARFARE AND
INTERNATIONAL LAW

Sean P. Kanuck, Information Warfare: New Challenges for Public International
Law, Harv. INT'L. L. J. 272 (Winter 1996)

Michael N. Schmitt, Computer Network Attack and the Use of Force in Interna-
tional Law: Thoughts on a Normative Framework, 37 COLUM. J. INT'L. L. 885
(1999)

Roger D. Scott, Legal Aspects of Information Warfare: Military Disruption of Tele-
communications, 45 NAVAL L. REV. 57 (1998)

524


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,®® a lesser action in that it does not involve proportional reprisals, i-e.,
an unlawful act designed to compel compliance.”

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®? 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, ifa 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,” 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

242


Douglas S. Anderson and Christopher R. Dooley

the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive
Arms (START), July 31, 1991.

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 ofa 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 AIR
OPERATIONS, (AFP 110-31) 1—6, cited in Ariane DeSaussure, The Role of the Law of Anned 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 itselfengages.” DoD/GC Paper,
stipra note 62.

175. This assumes that Nation A and Nation B are parties to those formerly bilateral
agreements.

309


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,
“Tslamic 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-
tity 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.5° 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.51
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

272


Responding to Attacks on Critical Computer Infrastructure

where the very fiber of our national security is placed at risk. For example, as W.
Gary Sharp correctly points out, an unlawful entry into and/or compromise of a
critical national security system by an individual or individuals can be viewed as
criminal activity under the jurisdiction of the federal and state law enforcement
officials. The same intrusion by the same individual or individuals representing a
State or international entity could be viewed as lawful espionage or intelligence
gathering practiced by all States. If, however, that intrusion and the debilitating
effect it has on national security can appropriately be characterized as an attack
on vital US national interests, the range of options is greatly enhanced.*3

This is important because the State or group attempting to compromise US
national security through the calculated sabotage of critical infrastructure is at-
tacking the nation, not with bombs or bullets, but with the intent of destroying
equally critical elements of national well-being and sovereignty. The loss of a
power grid or ofa US telecommunications network through computer gener-
ated viruses for an extended period of time would have the capacity of placing
more Americans at risk than a significant military threat.

The United States was jolted into an awareness of the changing character of ag-
gression when its embassy in Tehran was seized on November 4, 1979, by Iranian
militants who enjoyed the support of Ayatollah Khomeini’s revolutionary govern-
ment.*4 In August 1998, US Embassies in Nairobi and Dar-es-Salaam were the
subjects of unconventional warfare attacks, resulting in the significant loss of life in
Nairobi. In the attacks, a US response was only possible because of the linkage es-
tablished between Osama bin Laden’s organization and the assaults on American
interests. The thrust of the new US strategy, outlined in PDD 62, must be to re-
claim the initiative lost while the United States pursued a reactive policy toward
unconventional threats, especially those to its critical infrastructure.

An examination of authorized responses (and the selection of appropriate tar-
gets) to techno-violence requires an understanding that cyberterrorism is a strat-
egy that does not follow any of the traditional military patterns. In fact, a
fundamental characteristic of attacks on critical infrastructure is its violation of
the established norm of information security. The only norm for cyberterrorism
is effectiveness. While traditional international law requires discrimination
among those affected by an attack and proportion in its intensity, the nature of
information warfare and cyberterrorism is such that success is measured by the
extent and duration of destructiveness to the systems targeted, with no concern
for those affected. In the contemporary language of defense economics, they
wage countervalue rather than counterforce warfare.

Why is this important? It is important because the only credible response to
attacks on critical infrastructure is deterrence. There must be an assured,

432


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)’

Itis 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) ofthe UN Char-
ter. The [CRC 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, which can therefore be of very short duration. There
are, of course, other views which would require a threshold ofintensity or time,*
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. 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 bellum and the jus in
bello. 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.

164


Michael N. Schmitt

military and civilian medical units and supplies are exempt from attack unless be-
ing used for military purposes;® the same is generally true of medical transport.®?
So too are cultural objects, places of worship,”° and civil defense shelters, facili-
ties, and material.7! Additionally, humanitarian relief activities must not be in-
terfered with.’? 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.” 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.”4

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.”75 The United Kingdom issued a reservation
on precisely the same point when it became a Party to the protocol.” 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.”7 It is this principle which most clearly expresses humanitar-

ian law’s balancing of State-centric interests in resorting to force against the

200


Contributors

Burling Professor of International Law at the Johns Hopkins University Nitze
School of Advanced International Studies in Washington, DC. Professor
‘Wedgwood is a member of the Secretary of State’s Advisory Committee on In-
ternational Law, and is Vice President of the International Law Association
(American branch). During 1998-99, she served as the Charles H. Stockton
Professor of International Law at the US Naval War College. She has written
and lectured widely on Security Council politics, United Nations peacekeep-
ing, war crimes, and UN reform. She is a former law clerk to judge Henry
Friendly of the US Court of Appeals for the Second Circuit and Justice Harry
Blackmun of the U.S. Supreme Court, and Executive Editor of the Yale Law
Journal. Professor Wedgwood served as amicus curiae in the case of Prosecutor v.
Blaskic at the International Criminal Tribunal for the former Yugoslavia.

540


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. Id. at 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: Intemational Kidnaping, 86 AMERICAN JOURNAL OF INTERNATIONAL
Law 736 (1992); Murphy & Dumont, supranote 44. Per contra, see Malvina Halberstam, In Defence
of the Supreme Court Decision in Alvarez-Machain, 86 AMERICAN JOURNAL OF INTERNATIONAL
Law 736 (1992).

125. GILBERT, supra note 38, at 352.

126. Tim Golden, Bush Gives Mexico Limited Pledge on Abductions, NEW YORK TIMES, July 2,
1992, at A5.

127. Treaty to Prohibit Transborder Abductions, Nov. 23, 1994, US-Mex., 31 U.S. T. 5059,
reprinted in MICHAEL ABBELL & BRUNO A. RISTAU, 4 INTERNATIONAL JUDICIAL
ASSISTANCE: CRIMINAL 13-4-1, at A-676.3 (Supp.1995).

128. For general discussion of MLATs, see ETHAN A. NADELMANN, COPS ACROSS
BORDERS 312-96(1993).

129. US Department of State, Bureau for International Narcotics Control and Strategy Report
vii (1998).

130. The Criminal Division’s Office of International Affairs of the Department of Justice serves
as the Central Authority for all US MLATs.

131. Sussmann, supra note 37, at 472.

132. Id. at 473.

133. Id. The US Code provision is 18 US Code § 2703(6(1) (1994).

134. Id. at 474.

135. Id. at 475.

136. Id.

137. Id. at 475-76.

138. Phillip R. Reitinger, Compelled Production of Plaintext and Keys, UNIVERSITY OF
CHICAGO LAW FORUM 171 (1996).

139. Id. at 173. See also David Goldstone & Betty-Ellen Shave, International Dimensions of Crimes
in Cyberspace, 22. FORDHAM INTERNATIONAL LAW JOURNAL 1924 (1999).

140. Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56,115
Stat. 272 (2001).

141. See, e.g., the October 19, 2001, report of Silicon Valley.com, http://www.siliconvalley.
com/bin/printpage.pl.

142. Robert O’Harrow, Jr., U.S. Wants Authority to Disable PC Security, PHILADELPHIA
INQUIRER, Aug. 21, 1999, at A 1 (reprinting article from the Washington Post).

143. Sussmann, supra note 37, at 476, note 78. As an example, Sussmann notes that Article 1,
paragraph 2(h) of the US-UK MLAT provides for “such other assistance as may be agreed between
Central Authorities.”

350


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 ofits 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.!6 Conversely, a State (or its military) that law-
fully resorts to force may subsequently violate humanitarian law principles. Asan
example, it seems clear that Russia is entitled to maintain order in Chechnya; but
itis equally clear that in doing so its forces have regularly violated both the law of
non-international armed conflict and human rights law.!7 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 ifthe state of war is not
recognized by one of them.”!9 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.?° The fact that the 1977 Protocol Additional II also embraces
the term “armed conflict,”2! albeit in the context of non-international armed
conflict, demonstrates that armed conflict is a condition determined by its na-
ture, rather than its participants, location,” or, as was formerly the case with
“war,” declaration of the belligerents.?+

190




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? Ifa 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.”22 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 [W/IO will come from “Joint Vision 2010,” published by the Joint
StafFin 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


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 tight 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 fills 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 ofa 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 TW
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 Intemational 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. CJ. Statute, art. 38(1); RESTATEMENT (THIRD), supra note 20 §§ 102-03; see also supra
notes 18-19 and accompanying text.

263


Appendix

malicious logic launched against a military information system spreads to other
information systems being used to provide essential services to noncombatants.
It might also apply if malicious logic spreads to information systems belonging to
neutral or friendly nations. Finally, it might be applied indirectly if the conse-
quence of a computer network attack is to release dangerous forces, such as
opening the floodgates ofa dam, causing an oil refinery in a populated area to ex-
plode in flames, or causing the release of radioactivity.

* Perfidy: It may seem attractive for a combatant vessel or aircraft to avoid be-
ing attacked by broadcasting the agreed identification signals for a medical vessel
or aircraft, but such actions would be a war crime. Similarly, it might be possible
to use 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. If false, this would also be a war crime.

* Neutrality: Ifa neutral nation permits its information systems to be used by
the military forces of one of the belligerents, the other belligerent generally has a
right to demand that it stop doing so. Ifthe neutral refuses, or if for some reason it
is unable to prevent such use by a belligerent, the other belligerent may have a
limited right of self-defense to prevent such use by its enemy. It is quite foresee-
able, for example, that a belligerent might demand that a neutral nation not pro-
vide satellite imagery of the belligerent’s forces to its enemy, or that the neutral
cease providing real-time weather information or precision navigation services.

There appears, however, to be a limited exception to this principle for com-
munications relay systems. The primary international agreement concerning
neutrality, the 1907 Hague Convention Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land, to which the United States is a party,
provides in Articles 8 and 9 that “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 telegraph apparatus belonging to it or to Companies or private individ-
uals,” so long as such facilities are provided impartially to both belligerents. The
plain language of this agreement would appear to apply to communication satel-
lites as well as to ground-based facilities.

There is nothing in this agreement, however, that would suggest that it ap-
plies to systems that generate information, rather than merely relay communica-
tions. These would include the satellite imagery, weather, and navigation
systems mentioned above, as well as other kinds of intelligence-producing sys-
tems such as signals intelligence and hydrophonic systems. For example, if a

473


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.? 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.> 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.”*4

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? 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 bellum and the jus in bello. 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.® 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.”

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.”® This criticism seems particularly applicable to statements about interna-
tional Jaw. It thus is appropriate to make clear what kind of statements this chap-
ter is intended to make.

74


Information Operations in the Space Law Arena

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.” 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,*!
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,®? the Outer Space Treaty which entered into force on October 10, 1967, 3
has become the cornerstone multilateral agreement dealing with the use of space.
Frequently described as the “Magna Carta” of outer space, 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,%> has been the basis of subsequent space law treaties, and contains
several provisions that have general application to information operations.

Article I(1) obligates parties to use outer space “for the benefit and in the interest of
all countries” and provides that it is “the province ofall mankind.” Some schol-
ars have asserted that this language means that States cannot encroach upon, or
interfere with, the lawful activities of other States.% This language does not, how-
ever, impose any legal constraints on military operations properly authorized

278


Is It Time for a Treaty on Information Warfare?

to negotiate a multilateral treaty that declares broad relevant principles of inter-
national law. An example of such a document is the 1967 Outer Space Treaty, !2
which declares, inter alia, that space is not subject to national appropriation or
territorial claims, that nations are obligated not to interfere with the space activi-
ties of other nations, that space objects remain under the jurisdiction and control
of their nation of registry, that nations bear international responsibility for their
space activities, and that established principles of international law, including the
UN Charter, apply to space activities. Some candidate principles for a similar
declaration of principles on information activities might be that nations must not
damage/disrupt/interfere with the information systems of other nations; that
such acts violate the sovereignty of the victim nation and threaten international
peace and security; and perhaps even that interference with information systems
causing death, injury, widespread property damage, or serious damage to com-
munications, public utilities, economic institutions, emergency services, or na-
tional security systems will be considered to be equivalent to an armed attack,
thereby authorizing the victim nation to employ the remedies provided under
international law to the victims of traditional armed attacks, including the use of
force in individual or collective self-defense.

ASSESSMENT: It will take some time for most nations to determine what
international legal principles concerning information warfare are likely to best
serve their long-term national interests. Even nations that already possess sophis-
ticated information systems have little confidence at this point that they can reli-
ably forecast near-term technical developments that may drastically affect the
balance of information warfare capabilities and vulnerabilities. Those nations
that have even a minimum of capabilities to engage in information operations
must make a judgment as to whether their interests would be best served by
keeping open their options to interfere with other nation’s information systems,
especially when they are engaged in an international armed conflict, or whether
their national interests would be best served by creating an international legal re-
gime that broadly prohibits such interference.

The current domestic and international debate over “space control” may
present a useful analogy. As indicated above, the Outer Space Treaty declares the
general principle that nations will not interfere with the space activities of other
nations. However, its provisions recognizing that nations must conduct their
space activities in compliance with international law, including the UN Charter,
bring to bear the international law principles that force can be used in
self-defense and to execute mandates of the Security Council. Accordingly,
these widely-recognized legal authorizations for the use of force apply to space
activities in the same manner as they do in the air, at sea, and on land.

446


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. Italso appears that their provisions on
harmfil interference are inconsistent with astate of hostilities. See DoD/GC Paper, supranote 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 ftom 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., oth 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


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=gao8edocid=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 toa 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 offand 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 VILLANOVA 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 Intemational High-Tech and Computer 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 Thereto, Draft Explanatory Report (June 29, 1001), http://www.
conventions.coe.int/treaty/en/projects/finalcyberrapex.htm.

346


Yoram Dinstein

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,® and reiterated in the 1996 Nuclear Weapons Advisory Opinion.§”
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.” 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 ofa 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.7°

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.7! 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.7? 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
froma series of small-scale attacks is permitted to respond to them aggregately in
a single large-scale forcible counter-measure.”4 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.7> 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

109


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 ofthe 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
Taw 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 ifso 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.1 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
Qune 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
(anuary 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.

183


Jeffrey H. Smith and Gordon N. Lederman

cannot win without the net, nor can it be won on the net. In the future, there
must be coordinated land, sea, air, space, electronic and net warfare. . . .”20
Other news reports indicate that China and Taiwan are particularly involvedina
growing arms race regarding information warfare.?1

Information operations are thus growing in importance for military opera-
tions. It is likely that the United States will utilize information operations in fu-
ture warfare and peace-enforcement operations. Thus, military and civilian
decision-makers must understand the opportunities and restraints offered by in-
ternational obligations on the conduct of such operations.

A Brief Survey of the Process of International Law

Before looking at specific treaties, it is helpful to have an appreciation for
how international obligations arise. Two principles of international law are
that, first, sovereign States are equal and independent actors in the interna-
tional system, and, second, States assume legal obligations only by actually
agreeing to do so. States may enter into international treaties and agreements
binding the signatory parties. There also exists a body of “customary” interna-
tional law, composed of practices that are so widely followed by the majority of
nations that they are considered obligatory for all. For example, the first satellites
launched by the Soviet Union and the United States were seen as benign, and
nations lacked the technological ability to interfere with satellites; as a result, it
became customary international law that objects in orbit were beyond territorial
claims of any nation and that outer space was open to all nations. These concepts
were later embodied in international treaties concerning outer space, which will
be discussed later in this chapter. Asa side note, the development of international
Jaw concerning outer space contrasts with that concerning aviation, in which
nations produced a highly restrictive legal structure creating the concept of air
space and rendering illegal the entrance of aircraft into another nation’s air-
space.22

Countries usually cannot unilaterally withdraw from a treaty unless the treaty
provides for such an action, and treaties can only be modified by the agreement
of the parties. It should be noted that both treaties ratified by the Senate and ex-
ecutive agreements entered into by the President are equally binding on the
United States. Also, many treaties are silent on whether they continue to be in
force in the event of conflict or hostilities between the signatory parties; this is
important for discerning whether the US is bound by a particular treaty’s obliga-
tions in the event of an outbreak of hostilities and a US desire to conduct infor-
mation operations.?3

379


Appendix

international law principles to information attack, a term used to describe the use
of electronic means to gain access to or change information in a targeted infor-
mation system without necessarily damaging its physical components. One of
the principal forms of information attack is likely to be computer network at-
tack, or in today’s vernacular, the “hacking” of another nation’s computer
systems,

The proliferation of global electronic communications systems and the in-
creased interoperability of computer equipment and operating systems have
greatly improved the utility ofall kinds of information systems. At the same time,
these developments have made information systems that are connected to any
kind of network, whether it be the Internet or some other radio or hard-wired
communications system, vulnerable to computer network attacks. Moreover,
global communications are almost seamlessly interconnected and virtually in-
stantaneous, as a result of which distance and geographical boundaries have be-
come essentially irrelevant to the conduct of computer network attacks. The
result is that many information systems are subject to computer network attack
anywhere and anytime. The attacker may bea foreign state, an agent ofa foreign
state, an agent of a non-governmental entity or group, or an individual acting
for purely private purposes. The equipment necessary to launch a computer net-
work attack is readily available and inexpensive, and access to many computer
systems can be obtained through the Internet or through another network to
which access is obtained.

One major implication is that it may be very difficult to attribute a particular
computer network attack to a foreign state, and to characterize its intent and
motive. For the purposes of analysis we will initially assume away issues of attri-
bution and characterization, returning to them near the end of the analysis. An-
other major implication is that an attacker may not be physically present at the
place where the effects of the attack are felt. The means of attack may not be tan-
gibly present either, except in the form of anonymous and invisible radio waves
or electrons. This will complicate the application of traditional rules of interna-
tional law that developed in response to territorial invasions and attacks by
troops, aircraft, vehicles, vessels, and kinetic weapons that the victim could see
and touch, and whose sponsor was usually readily apparent.

467


Computer Network Attacks and Self-Defense

Gi)

ii)

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 aliato a CNA crossing the threshold ofan armed attack. The right to collec-
tive self-defense means that any third State in the world®? (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

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
fraught with great difficulties.*” Prior to determining its options in
combating terrorism, the victim State must establish a linkage be-
tween the terrorists and their sponsoring State.®® CNAs invite a
similar approach.

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 toa 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 thata 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.

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

112


Charles J. Dunlap

cyberterrorism. On a deeper level we must accept that perfect security is funda-
mentally at odds with democratic values. This applies as much to cyberterrorism
as to any other threat against us. We must be prepared to take prudent risks in or-
der to have a free society. The inescapable truth is that we must likewise ac-
knowledge that from time to time our freedom will exact a harsh price from us
and those we love.

Nevertheless, we must not allow the dread of digital terror to drive us to take
counsel of our fears. As Martin Van Creveld and others have pointed out, terror-
ism has not succeeded in developed States because it is a characteristic of moder-
nity to have a robust level of technological redundancy and political resiliency so
as to make individual terrorist attacks relatively futile in terms of real effect on ca-
pability.!16 While cyberterrorists might be able to inflict costly losses periodi-
cally, they cannot physically imperil our continued existence as a free nation.
Indeed, the real risk is upon those who challenge the forces of freedom. As Pro-
fessor Victor Hanson explains in his book, Soul of Battle!” history shows that the
forces of democracies once aroused are extraordinarily fearsome combatants who,
notwithstanding the seeming empowering militarism of the opposing forces,
tend to not merely defeat the armies of despots, but to pulverize them and every-
thing that supports them. So profound is such defeat that the very societies that pro-
duced the forces of tyranny are left fundamentally changed and virtually
unrecognizable to their former masters. The enemies of democracies ought to
take note.

In summary, the true threat is not what damage cyberterrorists can inflict
upon our digital systems, but what freedoms they can force us to forfeit. The San
Francisco Chronicle, citing a report by the Commission on National Security/21st
Century,!18 editorialized that “terrorist hackers” and other threats “will proba-
bly put pressure on the military to move into domestic law enforcement, blur-
ring the line between domestic and foreign threats.”!19 It soberly warned “it is
better to live with danger than in the security of a police State.”!20 Although we
are certainly not yet living in the shadow ofa police State, it is a timely reminder
of what is really at stake.

Notes

* The views and opinions expressed in this chapter are those of the author alone and do not
necessarily represent those of the US Government or any of its components.

1. See, e,g., Brendan I, Koerner, The Web’s Bad Week, U.S. NEWS & WORLD REPORT,
February 21, 2000, at 19 (“The intruder used an elementary method know as a denial of service
attack, which cripples a network by flooding it with too much information.”).

2, “Dotcom” isa generic name for companies whose business is integrated with the Internet.

367


“Weapons like to Lightning”

military personnel that constitutes an offense under the host nation’s law and not
under US law could give the host nation exclusive jurisdiction to prosecute. This
situation could occur ifa host nation’s computer law is more developed than US
law or prohibits particular forms of information warfare. Of course, the flexi-
bility and interconnectedness of the Internet mean that the United States could
conduct the information operations from a host country that allows such opera-
tions, thus avoiding the particular countries that criminalize such activity.

Espionage

The DoD/GC Paper emphasizes the fact that, given the ambiguity surround-
ing the concept of information warfare, the division between espionage and the
use of force is ambiguous. Thus, it may be unclear whether an information oper-
ation constitutes espionage or a military attack—or both. The paper also notes
that the division of labor between the intelligence community and the military
concerning covert action is likely to be blurred by information operations. As it
concludes, “it remains to be seen how information operations activities will fall
within this division of labor,” especially when such information operations oc-
cur in the context of military operations other than war such as peacekeeping,
peace-enforcement, and counter-narcotics missions.6

An Information Warfare Treaty?

In October 1998, Russia introduced a resolution in the United Nation’s First
Committee calling for States to report their views concerning the “advisability of
elaborating international legal regimes to ban the development, production and
use of particularly dangerous information weapons.” The United States respond-
ed that it was premature to discuss negotiating an international treaty concerning
information warfare. On the one hand, an international treaty serves the interest of
Jess-technologically developed nations because the treaty would most likely re-
strict more advanced nations such as the United States from developing informa-
tion warfare techniques. On the other hand, an international treaty need not
necessarily set restrictions below the level at which advanced nations currently op-
erate. Such restrictions would be equivalent to arms-control agreements setting a
limit on number of weapons well-above the number of weapons actually pos-
sessed by signatory States. Furthermore, a treaty limiting information operations
by nations does not address the problem of terrorists or hackers.®”

A treaty could potentially ban information operations but allow research on
information warfare or limit research to defensive capabilities. However, the

388


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 dwarfa 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


Meeting the Challenge of Cyberterrorism

47, FIDNET is designed to “protect vital systems in federal civilian agencies, and to ensure the
rapid implementation of system ‘patches’ for known software defects.” See White House, Office of
the Press Secretary, Cyber Security Budget Initiatives, February 15, 2000, www.whitehouse. gov/
WH/New/html/20000215_1.html. FIDNET is controversial becomes some believe it would be
improperly monitoring citizens, a charge the government has denied. See Tim Weiner, Author of
Computer Surveillance Plan Tries to Ease Fears, NEW YORK TIMES, August 16, 1999,
ebird.dtic.mil/Aug1999/s19990817author.htm.

48. See, e.g., Triangle Institute for Security Studies, Project on the Gap between Military and
Civil Societies, Digest of Findings and Studies, October 1999, www.unc.edu/depts/tiss/
CIVMIL.htm.

49, John J. Hamre, U.S, Military Wants No Domestic Law Enforcement Role, USA TODAY,
October 5, 1999, at 16 (letter).

50. Gregory Grove, Center for International Security and Cooperation, Stanford University,
The U.S. Military and Civil Infrastructure Protection: Restrictions and Discretion under the Posse
Comitatus Act 23 (1999).

51. Id.

52. Id. at 25.

53. Bob Drogin, In Theory, Reality, U.S. Open to Cyber-Attack, LOS ANGELES TIMES, October
9, 1999, at 16, www latimes.com/archives/, quoting Richard Clarke, National Coordinator for
Security, Infrastructure Protection and Counterterrorism.

54. Martin Libicki, Rethinking War: The Mouse’s New Roar?, FOREIGN POLICY, Winter
1999/2000, at 30 (abstract available at www.foreignpolicy.com/articles/winter1999-2000/
Libicki.htm).

55. See Anne Plummer, Pentagon Response To Commercial Denial-of-Service Attacks Limited,
DEFENSE INFORMATION AND ELECTRONICS REPORT, February 18, 2000, at 1.

56. Steven Levy & Brad Stone, Hunting the Hackers, NEWSWEEK, February 21, 2000, at 38, 44,
newsweek.com/nw-stv/printed/us/st/a16375-2000feb13.htm.

57. Bruce F. Wollenberg, The U.S. Power Grid Isn’t Hacker-Friendly, WASHINGTON TIMES,
April 22, 1998, at 18 (letter).

58. Vernon Loeb, Cybenwar’s Economic Threat, WASHINGTON POST, February 24, 2000, at 19,
quoting Dan Kuehl.

59. Bob Brewin, General: Cyberattacks against NATO traced to China, FEDERAL COMPUTER.
‘WEEK, September 1, 1999, www.fcw.com/few/articles/1999/few_09011999_china.asp.

60. John J. Stanton, Rules Of Cybenwar Baffle U.S. Government Agencies, NATIONAL DEFENSE,
February 2000, at 29, ebird.dtic.mil/Feb2000/s20000208rules.htm.

61. See White House, Cyber Security Budget Initiatives, supra note 47.

62. See National Highway Traffic Safety Administration, The Economic Cost of Motor
Vehicle Crashes, 1994 (1995), www.nhtsa.dot.gov/people/economic/ecomvc1994.html.

63. Per e-mail with Michael Baxter, Insurance Institute of Indiana, March 15, 2000 (on file
with author).

64. Deborah Shapley, Dr. E-Mail Will See You Now, TECHNOLOGY REVIEW,
January/February 2000, at 42, 44 (citing Forrester Research), www.techreview.com/articles/
jan00/shapley.htm.

65. In the aftermath of the denial-of-service attacks, Philip H. Karns, an engineer at Qualcom
Corp., reports that the “Intemet industry experts are rushing the development of software that will
locate, trace, and block fiuture denial-of-service attack. . . .” David E. Rovella, Preparing for a New
Cyberwar, NATIONAL LAW JOURNAL, March 13, 2000, www.lawnewsnetwork.com/stories/
A18373-2000Mar10.html.

66. Allan Sloan, Why the Market Will Rule, NEWSWEEK, February 21, 2000, at 49,
newsweek.com/nw-stv/printed/us/st/a16331-2000feb13.htm (visited March 15, 2000).

370


Index

Hackers
capabilities of: 360
as cybermercenaries: 54
and denial-of-service attack against the Serb Government: 363
extradition oft 179
methods used by: 11-14, 25-26, 27-30
motivations: 79
responsibility for prosecuting: 73, 103-04, 179
success of 24~25, 31-32, 73, 78, 266, 363
“Hacker's Manifesto”: 26
Hague Air Rules of 1923: 241, 242-43, 246
Hague Convention for the Protection of Cultural Property of 1954, Second Protocol to:
166-67, 168
Hague Convention of 1899: 165-66, 423
Hague Conventions of 1907: 165-66, 172, 422-23
V: 176-78, 234-36, 246
XI: 239
‘XIII: 234, 237, 238
Martens Clause: 189, 225, 423
Hamre, John: 266, 359
Hanson, Victor: 366
Higgins, Rosalyn: 128-29
High seas, use of for naval maneuvers: 240-41, 243
Hopkins, Commodore Esek: 400
Human Rights Committee: 336
Human Rights Watch: 364
Human-source intelligence: 312
Humanitarian relief activities: 200
Huntington, Samuel P.: 364
Hussein, Saddam: 54

India: 53, 271
Indiscriminate attacks, prohibition on: 166, 168-70, 201-02
Information assurance: 3, 24
definition of 36-37
military systems: 355
responsibility for: 52, 149
Information blockades: 326
Information operations
and arms control treaties: 287, 293-95, 447-48
authorized by the UN Security Council: 283

550




Appendix

General Assembly on 4 January 1999 entitled “Developments in the field of in~
formation and telecommunications in the context of intemmational security,”
which “calls upon Member States to promote at multilateral levels the consider-
ation of existing and potential threats in the field of information security,” “in-
vites all Member States to inform the Secretary-General of their views and
assessments” on information security issues, “requests the Secretary-General to
submit a report to the General Assembly” at its next session, and “decides to in-
clude information security in the provisional agenda for its next session.” U.N.
Doc. A/RES/53/70 (1999). In August 1999 the Secretary General submitted his
report to the General Assembly. It contained the statements submitted by ten
Member States (Australia, Belarus, Brunei, Cuba, Oman, Qatar, Russia, Saudi
Arabia, the United Kingdom, and the United States). The Russian statement re~
ferred to “information weapons . . . the use of which . . . can have devastating
consequences, comparable to the effect of weapons of mass destruction.” It pro-
posed that the General Assembly “adopt resolutions on the question of informa-
tion security with a view to reducing the threat of the use of information for
terrorist, criminal or military purposes,” which would help generate “interna-
tional principles (e.g., a regime, a code of conduct for States) with a view to
strengthening international information security,” and ultimately to a “multilat-
eral international legal instrument.” Aside from Russia, only Belarus and Cuba
expressed support for the development of international legal principles in the
field of information security other than cooperation in suppressing computer
crime and terrorism. The United States and the United Kingdom stated that it
‘was premature to attempt to formulate overarching principles pertaining to in-
formation security, and that, for the present, international efforts should focus on
measures to combat computer crime and terrorism. The Secretary General ven-
tured no opinion on the subject. U.N. DOC. A/54/213, 10 August 1999.

X. OBSERVATIONS

None

529


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.CJ. 96
Qune 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) 3121.01A, 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, stipra 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 2 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 determine 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 11 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 withouta vote on December 14, 1974.

67. See WALTER GARY SHARP, SR., CYBER SPACE AND THE USE OF FORCE, Ch. 6;
LAWRENCE T. GREENBERG ET AL., NATIONAL DEFENSE UNIVERSITY INSTITUTE FOR

144


Charles J. Dunlap

human nature leads me to conclude otherwise. In short, they “would if they
could—but they can’t.”

Let me emphasize that I certainly do not counsel indifference; I recognize that
cyberattacks will succeed occasionally. Collectively, they are costly—$7.6 bil-
lion in 1999 by one estimate.® Thus, I think the Clinton Administration’s pro-
posal to spend some $2 billion on various computer security programs is a
prudent and affordable insurance policy for the nation.®! I merely point out that as
sizeable as the estimated cyber losses are, they must be understood in the context of
a country that each year suffers more than $150 billion in costs from motor vehicle
crashes alone®*—not to mention over 40,000 deaths, and in excess of 6 million in-
jured.® I simply caution that we should not unnecessarily divert resources from
other pressing needs based on what may be an mistaken analysis of the threat.

Moreover, in calculating the dimensions of our potential cyberterrorism
problem we should not underestimate the power of our capitalistic free market
system to find solutions. In a very real way, America’s military prowess is largely
the product of its economic success. Given that business to business online sales
are expected to grow to $1.3 trillion by 2003, there is a immense incentive for
the commercial development of reliable computer security technology for on-
line transactions.

I believe the tremendous market imperative for secure transactions—and the
incentive it creates for effective computer security products®°—will rapidly out-
strip the resources of individuals or even governments to create methodologies
capable of circumventing improved defensive measures. In discussing the
long-term threat after the denial-of-service attacks in early 2000, one commen-
tator maintained that “[w]ith money at stake, e-businesses will fix this glitch.”6
Overall, I find persuasive Libicki’s view that our “enemies best time to conduct
information warfare has clearly come and gone.” Alll of this is yet more evi-
dence that it is unnecessary at the present time to involve the military in
cyberdefense any more than it is presently tasked.

To me, the real danger is not so much that cyberterrorists will use the Web
as a vehicle for destructive computer network attacks, but rather that they will
employ it as a convenient source of information useful for a variety of nefarious
purposes. For example, I am convinced that cyberterrorists could gather
enough personal information from Web sources to intimidate and harass indi-
viduals or even groups of individuals in the military and elsewhere. This is one
reason that the DoD has begun to limit the amount of information availabléon
public sites.®8 At least in the near term, however, the damage has been done.
There is sufficient information already on the Internet for those disposed for
whatever purpose to engage in such crimes as identity theft.® In fact, I believe

361


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!! 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


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


Is It Time for a Treaty on Information Warfare?

Only eight other nations—Australia, Belarus, Brunei, Cuba, Oman, Qatar,
Saudi Arabia, and the United Kingdom—submitted written views to the Secre-
tary General. Of these, only Belarus and Cuba expressed support for negotia-
tions to restrict information warfare. The Secretary General offered no opinion.

In August 1999, the United Nations Department of Disarmament Affairs and
the United Nations Institute for Disarmament Research (UNIDIR) hosted a
conference in Geneva, Switzerland on the topic: “Developments in the Field of
Information and Telecommunications and Their Impact on International Secu-
rity.” Russia used the forum to promote its proposals for international legal re-
strictions on information warfare, but it was unable to garner significant support
for doing more than continuing to study the problem.?

Nevertheless, the current paucity of enthusiasm for negotiating an interna-
tional agreement restricting information warfare may not last forever. In the past
twenty years, the international community has negotiated multilateral treaties
restricting such weapons as chemical weapons, blinding lasers, incendiaries,
weapons designed to wound with undetectable fragments, and antipersonnel
Jandmines.!° It might take only a few spectacular incidents involving CNA to
provoke serious interest in placing international legal restrictions upon “infor-
mation weapons.”

Subjects For Possible Agreements
Treaties to suppress private misconduct.

1. Suppression of “cyber-crime.” As indicated above, efforts are already under
way in the G-8, the Council of Europe, the Organization of American States,
and the United Nations to improve domestic criminal legislation, international
cooperation in investigations and prosecutions, and extradition treaties in order
to more effectively investigate and punish cross-border computer crimes. The
US and British submissions of views mentioned above recommended that the
United Nations give this area top priority in its activities concerning information
security.

ASSESSMENT: This topic is a logical candidate for priority consideration,
since both the nature of the problem of cross-border computer crime and the re-
quired remedial steps are reasonably well understood, and since national security
issues are not directly implicated. (It should be noted, however, that effective in-
ternational cooperation in tracing computer network attacks to their origin
would also greatly expedite attribution of State-sponsored CNA.) That is not to
say that the negotiation of the necessary international agreements will be easy,

444


Appendix

generate widespread dramatic consequences is likely to be very similar to its re-
action to espionage, which has traditionally been tepid.

519


Computer Network Attack: Developing the Rules of Engagement

sending government was lost once a ship got underway from port. It was in-
cumbent upon the commanding officer to conduct the mission pursuant to the
general guidance of the government. Virtually alone until the ship reached the
next friendly port, or until the ship encountered another friendly vessel that
could deliver news or orders, the commanding officer operated within broad
parameters or rules issued by the leadership. The Continental Navy’s first ex-
posure to rules governing operations occurred on January 5, 1776, when
Commodore Esek Hopkins received written orders to engage British raiders
that included a broad discretionary clause of authority:

Notwithstanding these particular Orders, which ’tis hoped you will be able to
execute, if bad Winds or Stormy Weather, or any other unforeseen accident or
disaster disable you so to do You are then to follow such Courses as your best
Judgment shall Suggest to you as most useful to the American Cause and to

distress the Enemy by all means in your power.'8

Although modern technology has tremendously improved communication
to underway vessels, naval vessels now routinely travel far from port, and transit
much faster—sometimes even underwater—without access to detailed and real
time guidance from a fleet commander or government leader. Prior to World
‘War II, there was little need for a policy on use of force aside from occasional
ships on diplomatic missions.!9 Following World War II regulations governing
the use of force, now known as rules of engagement, were promulgated in the
1948 United States Navy Regulations with Article 0614, “Use of Force Against
a Friendly State.”20 In 1962 the first in a series of ROE were issued that applied
Navy-wide. Written to address the unique challenges and special concerns aris-
ing from surface, undersea, and aviation operations throughout the maritime
environment, these ROE were subsequently updated in 1970 and 1981.7! Even
in the updated version, however, they still only applied to US naval forces.

In 1986, the United States issued generalized JCS Peacetime ROE that, for
the first time, included guidance for air and land forces.?? Two years later, fol-
lowing the experiences of the USS STARK (FFG-31) and USS VINCENNES
(CG-49) in May 1987 and July 1988 respectively, the Peacetime ROE were
again updated and revised. In 1994, a major revision was accomplished, and the
ROE that applied to all US forces were promulgated by the Chairman of the
Joint Chiefs of Staff as the Standing Rules of Engagement for US Forces
(SROE)?3 Aside from the obvious title change that removed the “peacetime”
reference, the 1994 document not only streamlined the ROE drafting and ap-
proval process, but also contained significant revisions, including a more

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John F. Murphy

144, Id. at 478-90.
145. See, e.g., the European Union’s Council’s Directive 95/46/EC on the Protection of

Individuals With Regerd to the Processing of Personal Data and on the Free Movement of Such
Data, 1995 OJ. (L281) 31. For an analysis of the EU directive, see Rosario Imperiali d’Afflitto,
European Union Directive on Personal Privacy Rights and Computerized Information, 41 VILLANOVA

LAW REVIEW, 305 (1996).
146. For an exploration of this theme, see John F. Murphy, The Need for International

Cooperation in Combatting Terrorism, 15 TERRORISM 381 (1990).

351


Michael N. Schmitt

the primary purpose of which is to spread terror among the civilian popula-
tion,” 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.’4°

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*! 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. Ifit 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,” 4? those relating to protection of the en-
vironment refer to “widespread, long-term, and severe damage,”#? 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.”4> 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
Jaw, CNA operations unlikely to result in the aforementioned consequences are

194


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 modem military weapons systems and
the contemporary techniques of non-military coercion.*+

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.3¢

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,*” 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.>8

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

127


Computer Network Attack: Developing the Rules of Engagement

background.‘ Still, it would be shortsighted to await the resolution of this and
other politico-legal debates before the military begins to think about a legal
model for computer network attack. With that in mind, the existing approach of
rules of engagement, embedded within the law of armed conflict, has several ad-
vantages. The construct is familiar within the United States and abroad, and it is
accepted as a global standard for ameliorating the effects of military operations. It
is also flexible and adaptable, and reflects hundreds of years of developmental
thinking, so it is a solid foundation on which to build. Most importantly, to the
extent that the law of armed conflict has been respected and observed in times of
conflict, it has alleviated suffering, limited destruction and spared civilian
casualties.

Law of Armed Conflict

The basic framework for all discussions of the laws of armed conflict center
around the four principles that evolved from customary international law and
subsequently codified in the Hague and Geneva Conventions. These principles
are: military necessity, distinction, proportionality, and chivalry. They frame all
military activities in armed conflict, and thus must be understood by policy mak-
ers and war fighters alike. Military necessity is a cornerstone principle of military
action. A commander may employ only that degree and kind of force, not other-
wise prohibited by the law of armed conflict, required for the partial or complete
submission of the enemy. A minimum expenditure of time, life, and physical re-
sources may be applied.*?

As reflected in Article 49 of Additional Protocol I to the 1949 Geneva Con-
ventions, distinction ensures “respect for and protection of the civilian popula-
tion and civilian objects . . . .”°9 Article 51 protects civilian populations, and
51(4) defines unlawfully indiscriminate attacks as: (a) those which are not di-
rected 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 Protocol I. Consequently, military strikes must distin-
guish between lawful combatants and civilians.5! It would be a violation of
LOAC to use civilians or a protected place or property to shield combatants ora
valid military objective. The presence of civilians within or near a legitimate
military target does not make an attack unlawful.

In the fog of modern war, in which a State’s entire society becomes vested
in warfare, it is especially difficult to distinguish between lawful and unlawful
targets:

410


Charles J. Dunlap

the clever cyberterrorist can often employ techniques that make it appear
that innocent parties are the instigators of whatever chaos they manage to
wreak. Thus, a military organization involved in investigating an attempted act
of cyberterrorism could well find itself mistakenly probing innocent persons.
Even when the guilty party is correctly identified, it may often be one more
properly falling within the jurisdiction ofa law enforcement agency, not a mili-
tary force.

Consequently, the current policy that assumes—at the outset anyway—that
an act of cyberterrorism is a criminal matter subject to law enforcement modali-
ties as opposed to a hostile attack calling for a response by the armed forces seems
appropriate. Moreover, military leaders—to include former Deputy Secretary
of Defense John Hamre—have repeatedly emphasized that DoD is not seeking
an active role in law enforcement in response to the terrorist threat.*9 Still, rela-
tive to the military, police resources are limited and diffused over thousands of
jurisdictions. While this state of affairs may be satisfactory in the context of ordi-
nary crime fighting requirements, it may be unacceptable if cyberterrorism pres-
ents a threat of truly catastrophic dimensions as some have claimed.

The magnitude of the cyberthreat has much to do with the appropriateness of
a military response. A recent study® of the Posse Comitatus Act in relation to
the protection of military and civil infrastructure against digital attack concluded
that the military may conduct what might otherwise be considered prohibited
Jaw enforcement activities under certain circumstances. Specifically, action
against civilians consistent with the act can occur when, inter alia, an “emer-
gency” exists or when the activity is primarily in pursuit of a “military pur-
pose.”5! Accordingly, “ifthe primary purpose ofan action is to resolve or averta
problem with a strong tie to national security, the military purpose exception [to
the Posse Comitatus Act] may be invoked.”52

This brings us almost full circle to the central issue: when does cyberterrorism
rise to the level of a true national security threat? We seem to accept almost
without question the assertion that the US is “extraordinarily vulnerable” and
that “an enemy could systematically disrupt banking, transportation, utilities,
finance, government functions and defense.”53 To listen to many pundits, the
US is virtually at the mercy of any teenager with a Radio Shack computer. The
reality, I contend, is much different. Specifically, I believe that cyber-
terrorism—particularly when conceived exclusively in terms of computer net-
work attack intended to cripple the nation’s economy or military forces—is
much more difficult to accomplish.

To put it bluntly, if cyberterrorism were so easy and cheap to do, why have
we not seen a catastrophic event? If not in the US, anywhere? This is much the

359


Douglas S. Anderson and Christopher R. Dooley

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.”!0 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.!!? 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.”1!3 While this view is not held by all,!!4 it now appears to
represent the international consensus!!5 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,!16
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:

Ifa 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

281


Is It Time for a Treaty on Information Warfare?

is essential to effective suppression of malicious interference with information
systems that are essential to development, prosperity, international peace and se-
curity, and human health and safety. Still others say that new information tech-
nologies raise novel international legal issues that would be better resolved by
negotiating a definitive international agreement than through the slow and un-
certain process by which customary international law develops. Others reply
that we are not yet smart enough to sit down and create international law on
these new issues, and that the gradual accumulation of practice and precedent of-
fers the best process for applying existing international law to these new issues in
cyberspace. I boldly take the position that each of these views is correct—in part
and on some subjects.

For the purposes of this chapter, I intend to set aside discussion ofa number of
military missions that are often considered to be elements of information war-
fare. These are the physical destruction of information systems by traditional
military means, electronic warfare (e.g., “jamming” of radio and radar signals),
military deception, and operations security. These traditional military missions
have been conducted fora long time over a wide spectrum of military operations
from peace to war, and the application ofinternational law to them is reasonably
well settled. I also intend to set aside discussion of directed energy weapons such
as high-energy radio, microwave, and electro-magnetic pulse devices. The
technology of these devices is relatively new, but their employment and effects
are likely to be so similar to those of traditional weapons that established princi-
ples of international law concerning the use of force and the law of armed con-
flict can be applied to them with great confidence.

Psychological operations have also been a traditional military mission, but
new technologies such as the broadcasting of radio and television signals from.
aircraft and satellites, worldwide access to the Internet, and greatly improved ca-
pabilities to create false images and messages give “psyops” unprecedented reach
and power. As we shall see, there already have been a few isolated calls for new
international controls over these new capabilities for spreading “propaganda.”

The newest element of information warfare, and the one currently drawing
the most attention, is computer network attack, or CNA. CNA is conducted by
sending electronic messages from one computer to another through some con-
necting medium or network, such as radio or the Internet, or by direct input
by a user of the target computer system. The most common forms of CNA are:
(1) overloading an adversary’s web pages or e-mail systems with so much input
that they cannot function properly; (2) tricking an authorized user into inputting
malicious logic, as by sending an e-mail message with a virus or a worm in an at-
tached file; and (3) obtaining unauthorized access to an adversary’s computer

440


An Assessment of International Legal Issues

“Prevention ofan arms race in outer space.” This resolution calls for reestablish-
ment by the CD ofan Ad Hoc Committee on the Prevention of an Arms Race
in Outer Space that existed in prior years. Canada and Egypt are actively pro-
moting consideration of a “no weapons in space” treaty in the CD, but so far
they have garnered little active support among the other CD members. Both
Russia and China have also announced their support for negotiations to ban.
“weaponization of space,” but neither has advanced a specific proposal with
much vigor. In summary, there appears to be widespread lukewarm support for
the general idea of a treaty banning an “arms race in space,” but the subject en-
_ joys a low priority at the moment and no draft treaty has garnered significant
support. This may all change ifand when a nation or nations are known to have
deployed operational space control systems, or are on the verge of doing so.
Chinese and Russian support fora ban on “weaponization of space” is seen in
some quarters as ironic, since China is reported to be developing a ground-based
anti-satellite laser system and Russia is the only nation known to have once had
an operational anti-satellite missile. There have been a number of reports that
the Soviet Union developed a “co-orbital ASAT” that was launched into orbit,
where it maneuvered close enough to a target satellite to destroy the target by
exploding. Reportedly, the Soviet system was tested against objects in space 20
times and became operational in 1978. Russia consistently denied that it had
tested or deployed such a system until September 1997, when press reports indi-
cate that President Yeltsin said in a letter to President Clinton that Russia at one
time possessed an anti-satellite capability, but that it had since “renounced” it.

F. Assessment.

There is no legal prohibition against developing and using space control
weapons, whether they would be employed in orbit, from an aircraft in flight, or
from the Earth’s surface. The primary prohibition is against weapons that entail
the placing of nuclear weapons in orbit or that would employ a nuclear explo-
sion in outer space. The use of space control systems in peacetime would be sub-
ject to both the general principles of international law and to treaty obligations
not to interfere with other nations’ space systems and national technical means of
verification. These obligations would probably be suspended during an interna-
tional armed conflict, during which the parties’ conduct would be governed pri-
marily by the law of war. U.S. domestic policy on space control, however, is at
best unsettled,

498


An Assessment of International Legal Issues

VIL. FOREIGN DOMESTIC LAWS
A. Introduction.

Laws enacted by other nations may have important implications for informa-
tion operations activities conducted by U.S. military forces. U.S. criminal stat-
utes addressing computer-related offenses, space activities, communications,
and the protection of classified information all raise important issues for informa-
tion operations. Similarly, foreign laws affecting U.S. information operations
activities will most likely also consist of criminal statutes.

The sophistication of foreign domestic law on high-tech activities varies
enormously, and it will continue to do so for the foreseeable future. The more
technologically advanced countries tend to be more aware of the dangers cre-
ated by computer hackers and other high-tech criminals, so they typically take
the lead in putting legislation into place to criminalize such behavior. It is no ac-
cident that the Justice Department’s international program to promote appro-
priate changes to mutual legal assistance treaties and other nations’ domestic
laws, which was discussed in Section VI of this paper, concentrated first on the
G8 countries and the Council of Europe. There are other important variables at
work besides technological advancement, however, including each nation’s
public opinion and policy positions concerning high-tech offenses, especially
computer hacking. There are persons in every country, including the United
States, who regard hackers as essentially harmless pranksters. There is a
well-established minority view that the Internet and all the computer systems
connected to it should be free game, and that defeating attempts to gain unre-
stricted access to these resources or imposing regulations on personal conduct on
the Internet are repressive violations of the hackers’ civil liberties. The argument
is even advanced that hackers provide valuable assistance to the operators of the
computer systems they attack, by revealing vulnerabilities that otherwise might
have been exploited by sinister persons with malicious motives. On the interna~
tional scene, there is the additional factor that many individuals love to see one of
their fellow citizens succeed in pulling the tail of richer and more powerful na-
tions, especially the United States.

Asa result, the state of domestic laws dealing with high-tech misconduct var-
ies enormously from country to country. This has important implications for
USS. information operations for two basic reasons: (1) The state ofa nation’s do-
mestic criminal law directly impacts the assistance that the nation’s public offi-
cials can provide in suppressing certain behavior by persons operating in its
territory; and (2) The state of a nation’s domestic criminal law may have a

512


Charles J. Dunlap

authorities.14 Nevertheless, the DoD “must be prepared, in concert with the
appropriate authorities and within defense priorities, to assist in their protec-
tion” if the attack on the systems “seriously degrades or threatens DoD opera-
tions,”15

Presidential Decision Directive (PDD) 63, issued in May of 1998,1© provides
a conceptual basis to expand DoD’s responsibility. In that document DoD was
designated as the “lead agency” in the area of “national defense” with responsi-
bility for “coordinating all of the activities of the United States Government in
that area.”!7 PDD 63, however, left the scope of “national defense” undefined.
In addition, PDD 63 established the National Infrastructure Protection Center
(NIPC), an organization physically located within the Federal Bureau of Inves-
tigation (FBI).!8 NIPC brings DoD together with “representatives from the
FBI, other US government agencies, state and local governments, and the pri-
vate sector.”19 NIPC also serves as the US Government’s “focal point for threat
assessment, warning, investigation, and response for threats or attacks against our
critical infrastructures.”20

Paralleling these developments, the individual military services have taken
steps to enhance defenses against cyberattacks. In 1993 the Air Force established
the Air Force Information Warfare Center with the explicit mission of protect-
ing friendly command and control systems.?! The other services have likewise
planned to confront a cyberadversary.2* Further, the National Security Agency
(NSA), an element of the Department of Defense, is tasked with an “informa-
tion assurance mission.”23 In executing that mission, NSA “conducts defensive
information operations, to achieve information assurance for information infra~
structures critical to US national security interests.” 24

In order to further coordinate the military response, Joint Task Force Com-
puter Network Defense (JTF-CND) was formed in early 199925 with a charter
to orchestrate the protection of all DoD computer systems.6 In a move to
bolster its effectiveness, JTF-CND was placed under the control of US Space
Command (USSPACECOM) in October of 1999.27 At the same time, the
Joint Information Operations Center was placed under SPACECOM control.”8
In another effort to increase its resources against cyberattack, the Defense Com-
puter Forensics Lab was established in September 1999.?9 It aims to facilitate,
among other things, the tracing across the Internet of hackers who threaten DoD
systems.20

Finally, Joint Task Force-Civil Support (JTF-CS), an organization assigned
to US Joint Forces Command, was established not to defend DoD systems per se,
but to assist civilian authorities in managing the consequences of any catastrophic
act of terrorism, including cyberterrorism. In announcing the new task force,

355


Horace B. Robertson , Jr.

Resolution, after listing certain acts involving the “armed forces of 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.6° 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.”® It also held, however, that the “mere
supply of funds . . . does not in itself amount to a use of force.”7°

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 ofnonmilitary types
of coercion (where armed force is kept to a background role) take on efficacy,
intensity, and proportions comparable to those ofan “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.”1

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.”2

While admitting that an instrument-based approach provides a relatively
easily-applied test for calculating lawfulness of an act of intervention,’> 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


Responding to Attacks on Critical Computer Infrastructure

Declaration on Friendly Relations, supra note 9, at 122-23.

11. “By accepting the respective texts [of the Declaration on Friendly Relations], States have
acknowledged that the principles represent their interpretations of the obligations of the Charter.”
Robert Rosenstock, The Declaration of Principles of International Law Concerning Friendly Nations: A
Survey, 65 AMERICAN JOURNAL OF INTERNATIONAL Law 713, 715 (1971).

12. Definition of Aggression, supra note 9, at 142.

13. Id, at 143.

14. A fundamental purpose of the UN Charter is to “maintain international peace and
security.” UN CHARTER art. 1, para. 1. Article 5, paragraph 2, of the Definition of Aggression
provides: “A war of aggression is a crime against international peace. Aggression gives rise to
international responsibility.” Definition of Aggression, supra note 9, at 144.

15. One potential act of destructive information warfare that would certainly trigger the
definition of aggression would be the use of information technology to disrupt some vital element
of the US economic apparatus (banking system, Stock Exchange, etc.) such that a juggernaut was
placed on US commercial activity.

16. 68 AMERICAN JOURNAL OF INTERNATIONAL LAW 720, 736 (1974) (Statement of
Acting Secretary of State Dean Rusk).

17. UN CHARTER, art. 51.

18. 5 MARJORIE WHITEMAN, DIGEST OF INTERNATIONAL LAW § 25, at 971-72 (1965).

19. George Shultz, Low Intensity Warfare: The Challenge of Ambiguity, US Department of
State Current Policy No. 783, at 3 (Jan. 1986).

20. UN CHARTER, art. 2, para. 4.

21. Myres McDougal, The Soviet-Cuban Quarantine and Self-Defense, 57 AMERICAN JOURNAL
OF INTERNATIONAL LAW 597, 600 (1963).

22, MCDOUGAL AND FELICIANO, supra note 8, at 242.

23. See the Security Council’s discussion in 36 UN SCOR.(2285-2288 mtgs.), UN Docs.
S/PV 2285-88 (1981).

24. G.A. Res. 53/70, UN GAOR, 53rd Sess., UN Doc. A/RES/53/70 (1998).

25. Id.

26. United States Explanation of Vote After the Vote, re: G.A. Res. 53/70 (1998), reprinted in
‘W. GARY SHARP, SR., CYBERSPACE AND THE USE OF FORCE 189 (1999).

27. Joint Chiefs of Staff Peacetime Rules of Engagement for U.S. Forces (June 1986).

28. Chairman of the Joint Chiefs of Staff Instruction 3121.01, Standing Rules of Engagement
for US Forces, Oct. 1, 1994, as amended Dec. 22, 1994. (The current version of the SROE was
promulgated on Jan. 15, 2000, as CJCS Instruction 3121.01A.)

29. US Navy, The Commander’s Handbook on the Law of Naval Operations (NWP 9), para.
8.1., (1987).

30. Classified document described by Robert C. McFarlane in “Terrorism and the Future ofa
Free Society,” (Speech delivered at the National Strategic Information Center, Defense Strategy
Forum, Washington, D.C.: 25 March 1985). See discussion in James Terry, An Appraisal of Lawful
Military Response to State-Sponsored Terrorism, NAVAL WAR COLLEGE REVIEW, May-June 1986,
at 58.

31. Presidential Decision Directive 62, Combatting Terrorism, May 22, 1998. Richard C.
Clarke, longtime senior National Security Council staff-member, was appointed as the first
National Security Coordinator.

32. Presidential Decision Directive 63, Critical Infrastructure Protection, May 22, 1998. See
SHARP, supra note 26, at 201-204, for a comprehensive review of the major elements of PDD 63
and the requirements imposed upon the various departments of government and the private sector
under this directive.

33. Id. at 205-206.

436


Appendix

* The Convention on the Registration of Objects Launched into Outer Space (the
Registration Convention, 1975)

Note: There is another treaty called the Moon Agreement of 1979 which the
United States has never signed and which has attracted only 9 parties, among
whom only France is active in space operations. In addition, several provisions
of the 1980 Environmental Modification Convention apply to space activity.
These agreements are not directly relevant to information operations, however,
and they will not be discussed further here.

The four major space treaties together establish the following principles that
are directly relevant to information operations. These principles have been so
widely accepted that they are generally regarded as constituting binding custom-
ary international Jaw, even for non-parties to these agreements.

* Space is free for exploration and use by all nations. It is not subject to na-
tional appropriation by claim of sovereignty, use, occupation, or any other
means.

* Activities in space shall be conducted with due regard for the interests of
other states.

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. Different standards of liabil-
ity are established for damage done to other items in space, for which a
“fault” standard applies, and damage done on the surface of the Earth and
to aircraft in flight, for which absolute liability applies.

* Space activities are subject to general principles of international law, in-
cluding the UN Charter.

Several conclusions are apparent from these general principles. The first is
that the rules on the use of force discussed in Section III of this paper apply fully
to activities in outer space. Among these are that nations are obliged not to use
force in their relations with each other unless they are acting in self-defense or
when authorized to do so by the UN Security Council. Once again, however, as
with other forms of information operations, one has to consider what actions by
or against objects in space will be considered to be uses of force. The world com-
munity would probably not hesitate to regard as a use of force the destruction of
a satellite by a missile or a laser. It would probably react similarly if it could be

493


XI

Neutrality and Information Warfare

George K. Walker!

66

here is nothing new about revising neutrality; it has undergone an
almost constant process of revision in detail,” Philip Jessup con-
cluded in 1936.? He also believed

. .. [NJothing 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.>

Over halfa century into the UN Charter era, little would change these obser-
vations, even in the information warfare ([W)* context. New considerations
have appeared,° 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,® 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,? there
can be no state of war, and therefore there is no need for a law of neutrality.1°




Brian T. O’Donnell and James C. Kraska

One related issue is the extent that commanders could order preemptive or
responsive attacks against non-state targets. It’s not just the military. The Chinese,
for example, puta lot of emphasis on people’s information warfare—encouraging
individuals to use their own technology to annoy and attack others.5?

As we enter the computer warfare age, nations will attempt to further exploit this
difficulty.

Loss of life and damage to property incidental to attack must not be excessive
in relation to the concrete and direct military advantage expected to be gained.
This concept of proportionality defines “concrete and direct” military advan-
tage as “the advantage anticipated from the specific military operation of which
the attack is a part taken as a whole and not from isolated or particular parts of the
operation.”53 Collateral damage and incidental injury have historically been the
product of three factors: (1) a lack of full knowledge as to what is being hit; (2)
the inability to surgically craft the amount of force being applied to the target;
and (3) the inability to ensure that the weapon strikes precisely the right point.5+
On the digital battlefield, collateral damage could affect entire sectors of the
economy and society.

Finally, the main tenets of chivalry center around the principles of treachery
and perfidy. The 1977 Additional Protocol I bans “. . . acts inviting the confi-
dence ofan adversary to lead him to believe that he is entitled to, or is obliged to
accord, protection under the rules of international law applicable in armed con-
flict, with intent to betray that confidence. . . .”55

Perfidy includes: 1) feigning of intent to negotiate or surrender, 2) feigning
incapacitation, 3) feigning civilian, noncombatant status, and 4) feigning pro-
tected status by use of signs or uniforms of the UN or neutral states. Ruses, how-
ever, are not prohibited in an armed conflict.5¢ Legitimate ruses include
camouflage, deceptive lighting, decoys, mock operations, simulated forces and
use of enemy codes and passwords.°” These long-standing principles of interna-
tional law have direct bearing on possible future CNAs that might rely upon
e-mail delivery. One author has advanced the premise that:

While chivalry may seem archaic today, it retains some normative value. . . [by]
analogy [it] strongly weighs against sending a logic bomb disguised as e-mail from.
the International Committee of the Red Cross (ICRC) or even from “Microsoft
Software Support”. . . . [S]uch a message might be permissible without perfidious
labels. Using ICRC and Microsoft tags would constitute an illegitimate act of
perfidy, much as would disguising any dangerous military intruder in the form of
an innocuous invitee.58

411


Information Operations in the Space Law Arena

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 Jan. 27, 1967, 18 U.S.T. 2410, T.LA.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 Retum 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.LAS. No. 6599, 672 U.N.TSS. 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.LA.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.LA.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., Intemational
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;

302




Phillip A. Johnson

Sea. The San Remo Manual is widely recognized as an authoritative restatement
of the consensus understanding among the world’s leading governmental and
academic experts in this branch of international law, and it will no doubt be
accorded great weight as evidence of the interpretation of applicable treaties and
the state of customary international law. However, there would appear to be
little potential in the foreseeable future for successfully employing an “experts
conference” to authoritatively record the customary international law governing
information warfare. At present there is no such law, which can only accumulate
from State practice in reaction to events as they unfold over time. Accordingly,
there are no “experts” either, since there is no accumulation of State practice that
learned commentators could analyze and restate.

Conclusions

The next few years are likely to produce a number of regional and bilateral
agreements designed to improve international cooperation in battling
cybercrime and cyberterrorism. If dramatic events occur involving
cyberterrorism, or if the international community feels the necessity to do some-
thing in the area of computer network attacks, a multilateral convention on sup-
pression of cyberterrorism may result. The parties to strategic arms control
treaties may find it useful to state their common understanding concerning how
their provisions apply to CNA directed against national technical means of veri-
fication, command and control systems, and attack warning systems.

However, there seems to be little or no prospect of negotiating international
agreements that would broadly prohibit or regulate state action involving infor-
mation warfare techniques because: (1) the issues involved are not yet well un-
derstood; (2) traditional arms control and law of war mechanisms are not well
suited for application to CNA; and (3) the nations—including the United
States—do not yet have a clear understanding of what kind of international legal
regime relating to information warfare would best serve their long-term na-
tional interests. For the foreseeable future, the development of international law
concerning information warfare is most likely to consist of the incremental ac-
cumulation of customary international law resulting from the actions and state-
ments of nations in response to events as they unfold. Considering the
circumstances, that is probably the best available process. During this formative
period, statesmen and their advisers will have a heavy responsibility to bear in
mind that their acts and statements will play a major role in the development of
international law concerning information warfare.

453


“Weapons like to Lightning”

countries that may be relevant depending on the circumstances ofa particular in-
formation operation.

The DoD/GC Paper concludes by stating that “International Communica-
tions Law contains no direct and specific prohibition against the conduct of in-
formation operations by military forces, even in peace time.”52 However, US
information operations may be carried out not only by military forces, but also
by intelligence personnel engaged in covert action or other intelligence-related
activities. Yet, the ITU Convention’s Article 48 exemption for military opera-
tions does not appear to allow for such interference in telecommunications by
non-military personnel such as intelligence operatives.5> Also, the interna-
tional telecommunications treaty regime contains certain notice provisions,
and it is unlikely that the military would wish to publicize its information oper-
ations in that way.

A Checklist of Other US Treaty Obligations

In addition to international law governing the use of outer space and tele-
communications, various other treaties and international obligations could im-
pact upon, interfere with, and possibly even prohibit the conduct of US
information operations. The following discussion is intended as a non-
exhaustive checklist for decisionmakers faced with the question of whether to
authorize a particular information operation.

The United Nations Convention on the Law of the Sea (LOSC)

This convention, which is currently under review by the Senate for advice
and consent, codifies several provisions of customary international law and cre-
ates new requirements. One such provision of preexisting customary interna-
tional Jaw is Article 19, which states that a vessel exercising the right ofinnocent
passage through another nation’s territorial sea cannot engage in activities “prej-
udicial to the peace, good order, or security of the coastal State.”54 Article 19
defines “prejudicial activities” to include:

* Any threat or use of force against the sovereignty, territorial integrity or
political independence of the coastal State, or in any other manner in
violation of the principles of international law embodied in the Charter of
the United Nations; . . .

* Any act aimed at collecting information to the prejudice of the defense or
security of the coastal State;

384


An Assessment of International Legal Issues

not such activity is prohibited under local law. The answer may be important at
two different levels ofanalysis: (1) The individuals who issue or execute such an
order might be subject to prosecution in a host nation criminal court; and (2)
The commander might feel obligated on a policy basis to refrain from issuing
such an order.

Ifa U.S. military member issued an order or performed an act in the course of
his or her official duties overseas that was a crime under host nation law, the
member could very well be subject to prosecution in a host nation criminal
court. Under many SOFAs, an act done in the course ofa military member’s of-
ficial duties falls within the primary right to exercise jurisdiction of the sending
state, but that rule applies only when the conduct constitutes an offense under
the law ofboth nations, or only under U.S. law. Where the conduct alleged con-
stitutes an offense only under the law of the host nation, the host nation has ex-
clusive jurisdiction to prosecute. The United States has consistently taken the
position that it would be intolerable for a U.S. military member to be criminally
prosecuted for performing an act that is legal under applicable U.S. law, such as
the Uniform Code of Military Justice (UCMJ), and which he or she was in-
structed to perform in the execution of an official duty. A similar issue arose re-
cently in connection with the adoption by several NATO member nations of
domestic laws making it a crime to possess anti-personnel land mines (APLs).
There is no similar crime under the UCMJ. In several cases, the nations con-
cerned have agreed to permit the U.S. forces to retain their APL stockpiles in the
host nation’s territory for at least some period of time. In these cases, either spe-
cific exemptions from the host nation law or agreed screening procedures for
prosecutions have had to be devised to prevent prosecutions of U.S. military
members for performing their official duties.

In practice, such prosecutions are most unlikely because if U.S. military au-
thorities become aware that performance of certain information operations
within the territory of a specific host nation, or that produce harmful effects
within its territory, will subject military personnel to possible host nation crimi-
nal prosecution, those U.S. military authorities are most unlikely to order that
such operations be conducted. The result will be that U.S. forces are unable to
conduct certain activities they would otherwise conduct, or perhaps they will
have to use forces elsewhere to conduct the operation. The issue thus becomes
not so much one of the prospect of criminal prosecution of individual service
members but rather of a limitation on the conduct of U.S. information
operations.

This consideration may be not only a policy issue— it may involve binding legal
obligations under a status of forces or similar agreement. For example, Article II of

514


Horace B. Robertson , Jr.

a lethal weapon in the hands of 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 of WarRoom 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. Hd., 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.
11. JosefL. 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


James P. Terry

This pro-active strategy to the threat posed by attacks on our critical infra-
structure embraces the use of protective, defensive, non-military, and military
measures. It attempts, for the first time, to define acts designed to destabilize our
eight most important infrastructure systems in terms of “aggression,” with the
concomitant right of self-defense available as a lawful and effective response.
The use of international law and, more specifically, the law of armed conflict,
will not only complement the current criminal law approaches, but give pause to
those who would target vital US interests.

NOTES

1. See Bradley Graham, US Studies New Threat: Cyber Attack, WASHINGTON POST, May 24,
1998, at A-1. The author describes Operation Eligible Receiver, conducted by the NSA and other
government agencies.

2. Speech of the Hon. Jamie Gorelick before the Corps of Cadets, US Air Force Academy,
February 29, 1996.

3. See William Gertz, Chinese Hackers Raid US Computers, WASHINGTON TIMES, May 16,
1999 at C1, C8, fora troubling review of Chinese efforts to attack White House, State Department
and other government computer systems.

4. Convention (II) with Respect to the Laws and Customs of War on Land, July 29, 1899,
1 AMERICAN JOURNAL OF INTERNATIONAL LAW (Supp.) 129 (1907); Convention (IV)
Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 2 AMERICAN JOURNAL
OF INTERNATIONAL LAW (Supp.) 90 (1908), ADAM ROBERTS AND RICHARD GUELFF,
DOCUMENTS ON THE LAWS OF WAR 59 (3rd ed. 2000); Protocol I Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts, June 8, 1977, 16 INTERNATIONAL LEGAL MATERIALS 1391 (1977), ROBERTS AND
GUELFF, supra, at 420. Most treaties relevant to the law of armed conflict are available on the
International Committee of the Red Cross website at www.icrc.org/ihl/.

5. LAWRENCE T. GREENBERG, SEYMOUR E. GOODMAN, AND KEVIN J. SOO Hoo,
INFORMATION WARFARE AND INTERNATIONAL LAW 32 (1997).

6. UN CHARTER, art. 2, para. 4.

7. See LEAGUE OF NATIONS COVENANT, art. 12.

8. MYRES MCDOUGAL AND FLORENTINO FELICIANO, LAW AND MINIMUM WORLD
PUBLIC ORDER 142-143 (1961).

9. See Definition of Aggression, G.A. Res. 3314, 29 UN GAOR Supp. (No. 31) at 142, UN
Doc. A/9631 (1974) [hereinafter Definition of Aggression]; 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, 25 UN GAOR Supp. (No. 28) at 121,
UN Doc. A/8028 (1970) [hereinafter Declaration on Friendly Relations].

10. The Declaration on Friendly Relations includes the following provisions:

© Every State has the duty to refrain from organizing, instigating, assisting or participating in
acts of civil strife or terrorist acts in another State.

* No State or group of States has the right to intervene, directly or indirectly, for any reason.
whatever, in the internal or external affairs of any other State.

* No State shall organize, assist, foment, finance, incite, or tolerate subversive, terrorist, or
armed activities directed towards . . . the regime of another State.

435


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 manewver, preci-
sion engagement, full-dimensional protection, and focused logistics.4°

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 comerstone 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 concems 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

315


XVI

“Weapons like to Lightning”
US Information Operations and
US Treaty Obligations

Jeffrey H. Smith and Gordon N. Lederman

| he increasing prevalence of computers in the world economy creates

new opportunities for the US to conduct offensive military operations
and espionage. However, the US is increasingly vulnerable to computer attack,
requiring the United States to defend its military and civilian electronic infra-
structure. As a nation committed to the rule of law, the United States must re-
main within the bounds of international law in the conduct of both offensive
and defensive information operations.

This chapter explores the opportunities and restraints offered by interna-
tional law for the conduct of US information operations. We both summarize
and critique the 1999 analysis of these issues by the Office of General Coun-
sel, US Department of Defense (DoD), entitled “An Assessment of Interna-
tional Legal Issues and Information Operations” (hereinafter DoD/GC
Paper).2 The DoD/GC Paper surveys international legal issues ranging from
the law of war, to obligations under the United Nations Charter, to a host of
treaties signed by the United States. This chapter will explore the impact of
US international obligations concerning outer space, international communi-
cations, and other issues on the conduct of information operations. It will not




Appendix

XI. NOTES FOR FURTHER RESEARCH
L INTRODUCTION

There are many textbooks and casebooks that provide general surveys ofinterna—
tional law. Some of the more recent of these are:

Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (4th ed. 1990)
Barry E. Carter & Phillip R. Trimble, INTERNATIONAL LAW (1991)

Stephen Dycus, Arthur L. Berney & William C. Banks, NATIONAL
SECURITY LAW (2nd ed. 1997)

Louis Henkin, Richard C. Pugh, Oscar Schachter & Hans Smit,
INTERNATIONAL LAW: CASES AND MATERIALS (3rd ed. 1993)

John Norton Moore, Frederick S. Tipson & Robert F. Turner, NATIONAL
SECURITY LAW (1990)

Malcolm N. Shaw, INTERNATIONAL Law (4th ed. 1997)

Useful collections of materials on U.S. practice concerning international legal is-
sues include:

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES (1986)

Hackworth, DIGEST OF INTERNATIONAL LAW, 7 Volumes (1940-1943)
Whiteman, DIGEST OF INTERNATIONAL LAW, 15 Volumes (1963-1973)
Contemporary Practice of the United States Relating to International Law, a regular
feature in THE AMERICAN JOURNAL OF INTERNATIONAL LAW; and
INTERNATIONAL LEGAL MATERIALS; both of which are publications of the
American Society of International Law. (Web site at www.asil.org)

The United Nations Charter has been widely reprinted. It can also be found at 59

Stat. 1031; TS 993; 3 Bevans 1153.

523


George K. Walker

modality of transmitting Internet messages, States will indirectly affect use ofand
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.”3 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.?4 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 “call[s] 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.” If
Council or General Assembly resolutions are at variance from traditional neu-
trality principles, and restate customary or other binding sources of law,”6 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.?9

A neutral has a duty to prevent use of its territory for a belligerent’s opera-
tions, base, or as a sanctuary.°° 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.3! Ifa 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,

235


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.”59 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.5! 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.5? As to
“definite military advantage,” the commentary excludes attacks that offer only a
“potential or indeterminate” advantage.>> 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.>4

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? Ifa country disproportionately relies ona 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

196


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 Chief 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
farther 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 ifneed 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 ofno 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) & (ii), 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,

214


Phillip A. Johnson

given the major differences that exist among domestic legal systems and the en-
croachment on traditional sovereignty principles that will be inescapable in cre-
ating legally binding obligations to assist with criminal investigations and
prosecutions, not to mention the proposals that are under consideration for re-
ciprocal authorization of cross-border electronic tracing and monitoring.

2. Suppression of “cyber-terrorism.” A “cyber-terrorism” agreement might well
adopt the common features of the existing multilateral treaties intended to com-
bat such terrorist acts as the hijacking and sabotage of aircraft, hostage taking, at-
tacks on diplomats, terrorist bombing, and the seizure of ships on the high seas.!1
These common features are a recognition of universal or quasi-universal juris-
diction over individuals committing specified acts, an obligation upon each
Party to put into place severe domestic criminal penalties for such acts, and an
obligation to prosecute or extradite any person suspected of such acts who is
found in the territory of a Party.

ASSESSMENT: It may prove to be difficult to generate much interest in nego-
tiating such an agreement until the international community experiences inci-
dents in which “cyber-terrorism” causes death and destruction on the scale
experienced as the result of more traditional forms of terrorism. To date, the most
common form of cross-border CNA motivated by political reasons has consisted
of individuals defacing the target nation’s websites, which is likely to strike most
people more as vandalism than as terrorism. Even the theft of large amounts of
money or the crippling of expensive information systems is unlikely to provoke
the same kind of fear and loathing created by more traditional terrorist acts that di-
rectly threaten innocent human lives. It would probably take an incident in which
planes crash, trains collide, floods cause death and devastation, or a nuclear acci-
dent spreads radiation over the countryside before CNA would be taken seriously
as “cyber-terrorism.” Another major problem would be reaching agreement on
definitions of the acts to be suppressed. It is certainly worth exploring the possibili-
ties here, but rapid progress—or even moving the international community at
large to devote serious effort to negotiation ofa “cyber-terrorism” treaty—seems
unlikely in the near future. It may turn out that the most effective legal mechanism
for suppression of “cyber-terrorists” will be “cyber-crime” agreements, as dis-
cussed above, that would put into effect domestic computer crime laws and facili-
tate cross-border investigations and prosecutions.

Treaties to restrict state action.

1. Declarations of general legal principles. Perhaps the simplest approach to ad-
vancing the development of international law on information security would be

445




Index

Yugoslavia
NATO bombing of 65, 203-04, 208, 223-24
and NATO press conferences: 65

568


Responding to Attacks on Critical Computer Infrastructure

“must be unambiguous. It must be clearly and unequivocally the policy of the
United States to fight back—to resist challenges, to defend our interests . . .
.”38 Implementation of this pro-active policy requires that we make the fullest
use of all the weapons in our arsenal. These should include not only those de-
fensive and protective measures which reduce US systems-vulnerability, but
also new legal tools and agreements on international sanctions, as well as the
collaboration of other concerned governments. While we should use our mili-
tary power only as a last resort and where lesser means are not available, there
will be instances where the use of force is the only alternative available to elim-
inate the threat to critical civil or military infrastructure.

Closely related to the legal question is the political question oflinkage. When
clear linkage to a supporting State exists, we must publicize that relationship and
respond with discrimination in a manner calculated both to eliminate the cur-
rent threat while deterring the offending State from further destabilizing actions.
The “center of gravity” in the offending State must always be that target or capa-
bility which most significantly undermines that State’s will to continue to
destabilize our critical infrastructure. Since cyberterrorism is a lesser form of in-
ternational conflict and is bound by its rules, lawful response is properly limited
to those targets which do not enjoy civilian immunity. Military targets may be
preferable for two other reasons. First, the selection of military targets, while our
adversaries are attacking our civil infrastructure in violation of international law,
should not raise concerns on the part of other States. Additionally, selection of
military targets would refocus attention on the fact that cyberterrorism and
techno-violence are, in fact, forms of armed conflict.

The thrust of this new strategy, outlined in PDDs 62 and 63, must be to re-
claim the initiative lost while the United States pursued a reactive policy to in-
cidents of information warfare which neither deterred cyber-terrorists nor
encouraged successful response. The key to an effective, coordinated policy to
address the threat posed by those willing to target our critical infrastructure is
the commitment to hold those accountable responsible under the law of armed
conflict. Full implementation of the two PDDs should lead to increased plan-
ning for protective and defensive measures to address this challenge to US na-~
tional security, and, where deterrence fails, to respond in a manner which
eliminates the threat, rather than treating each incident after the fact as a singu-
Jar crisis provoked by international criminals. By treating cyber-terrorists as
participants in international coercion where clear linkage can be tied to a State
actor, the right of self-defense against their sponsor is triggered, and respond-
ing coercion (political, economic, or military) may be the only proportional
response to the threat.

” 434


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 of
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

228


A Different Kettle of Fish: Computer Network Attack

victim’s computer and trying to decrypt it, or catching passwords “on the fly”
with a “sniffer.” :

Port 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
ina 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.?

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


Fourth Dimensional Intelligence

these two problem areas is this fourth dimension of cyberspace, the battleground
of the future.

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.>?

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.3¢

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.*8 Additionally, there are inter-
nal policy directives that further refine the methods by which the intelligence
community can collect this intelligence.3?

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


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).5® State practice definitely shows
that defensive armed reprisals are part and parcel of the arsenal of States subjected
to armed attacks.°° 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.® 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.®! Such a turn of events would not cloak the terrorists with a
mantle of protection from State B. “Ifa 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.” As already epitomized in
the classical Caroline incident of 1837, 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,”®+ while others prefer
the term “state of necessity.”6° What counts, however, is the substance of the
Jaw 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.

108


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.8° The SCUD is not an in-
herently indiscriminate weapon. Indeed, itis 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

202


Appendix

TABLE OF CONTENTS
I, INTRODUCTION. .... 0.20. e eee eee eee eee eee 463
A. Sources and Application of International Law. ....... 463
B. Essentials of TreatyLaw ... 2... 2. ee eee eee 465
C. New Legal Challenges Presented by Information Operations. 466
IL. THE LAW OF WAR... 2.2.22 cece eee eee 468
A. Essentials of the Law of War... 2... ..--.204- 468
B. Application to Information Operations ..........- 470
C. Assessment... 2... ee ee ee ee 475

II. INTERNATIONAL LEGAL REGULATION OF THE USE OF

FORCE IN “PEACETIME” ..

A. International Law Concerning the Use of Force among
Nations 2. 2... eee 476
B. Acts not Amounting to the Use of Force... .......- 481
C. Application to Computer Network Attacks... 2.2... 483
D. An “Active Defense” against Computer Network Attacks . . 485
E. Assessment... ....--.-.---+-0002220008 491
IV. SPACELAW ...... 0.2.2.2 cece eee ee 492
A. Introduction... 2... 2. ee ee eee 492
B. Space Law Treaties. . . 492
C. Specific Prohibitions of Military Activities in Space... . . 494
D. Domestic Law and Policy... ....-.-.--.--2---- 496
E. International Efforts to Control ““Weaponization of Space”. 497
F. Assessment... 2... 2 ee ee ee ee 498
Vv. COMMUNICATIONS LAW ........... 0000 c cece ee eee 499
A. International Communications Law. ........-.-..- 499
B. Domestic CommunicationsLaw .......-...-.- 501
C. Assessment... 2... ee ee ee ee eee 502
VI. IMPLICATIONS OF OTHER TREATIES ...........-..4- 503

A. Mutual Legal Assistance Agreements

B. Extradition Agreements.

C. The United Nations Convention on the Law of the Sea
(UNCLOS) ... 2... 2... eee ee eee ee eee 504



An Assessment of International Legal Issues

Read together, these agreements permit the development, testing, and de-
ployment of anti-satellite and satellite-defense systems unless they involve either
the stationing or testing of nuclear devices in outer space or the orbiting of sys-
tems that also have ABM or ATM capabilities. Their use is subject only to (1) the
general principles of international law relating to the use of force; (2) the princi-
ple of non-interference with the space systems of other nations in peacetime,
subject to the right to use force in self-defense and when authorized by the UN
Security Council; (3) the law of war during international armed conflicts; and (4)
obligations under relevant arms-control agreements not to interfere with other
parties’ national technical means of verification. This leaves a very broad range of
permissible “space-control” systems and operations.

In a non-nuclear conflict, the parties might very well determine that the
treaty prohibitions against placing nuclear weapons in orbit, against exploding
nuclear devices in outer space, and against placing ABM components and ATM
interceptors in orbit remain consistent with a state of limited armed conflict.
Those obligations may well serve to avoid escalation of the conflict to the nu-
clear level. The parties’ conclusions as to the obligation not to interfere with
other parties’ national technical means of verification will probably depend to a
great extent on the circumstances of the conflict.

D. Domestic Law and Policy.

A federal statute, 18 USC 1367, makes it a felony to intentionally or mali-
ciously interfere with a communications or weather satellite, or to obstruct or
hinder any satellite transmission. The application of this statute to national secu-
tity information operations is discussed in the companion assessment of domes-
tic legal issues.

U.S. domestic policy on developing space control capabilities has been in-
consistent at best. By the early 1980s the U.S. Air Force had developed an
anti-satellite missile with an explosive warhead that was carried aloft by an F-15
fighter and launched at high altitude. A test of this system was conducted in 1985
against a U.S. satellite whose useful life had expired. Congress soon thereafter
decreed that no appropriated funds were to be used to test any weapon against an
object in orbit. In 1987 the USAF program was terminated. At the time, it ap-
peared that members of Congress voting for the ban had done so for a variety of
reasons, among which were: (1) support for the broad principle that space should
be free from human conflict; (2) dismay that the first test had generated 285
pieces of trackable space debris; (3) concern that further testing of an
anti-satellite capability might interfere with continuing strategic arms control

496


Responding to Attacks on Critical Computer Infrastructure

other issues that are considered in the Second and Sixth Committees. Further, the
actions and programs of governments are by no means the only appropriate focus,
for the initiative also involves important concerns of individuals, associations,
enterprises, and other organizations that are active in the private sector.?6

Despite such international initiatives focusing upon multilateral cooperation,
the opportunity to look to outside assistance in protecting secure transmissions
and critical systems in circumstances where our national security is threatened, is
likely illusory. That responsibility will most certainly remain exclusively within
the National Command Authorities.

Operational-Legal Considerations in Addressing Techno-Violence
Operational Law Context Provided in Rules of Engagement

The rules of necessity and proportionality in the information warfare scenario
are given operational significance through rules of engagement (ROE). ROE
are directives that a government may establish to define the circumstances and
limitations under which its forces will initiate and continue responsive actions to
eliminate the threat posed by an attack through technical or other means on
critical communications/information infrastructure. In the US context, this
ensures that the National Command Authorities’ guidance for handling crisis re-
sponses to techno-violence and other threats is provided, through the Joint
Chiefs of Staff (JCS), to subordinate headquarters and deployed US forces both
during armed conflict and in periods of crisis short of war.

ROE reflect domestic law requirements and US commitments to interna-
tional law. They are impacted by political, as well as operational considerations.
For the commander concerned with responding to a threat to his communica-
tions/command and control infrastructure, ROE represent limitations or upper
bounds on how to utilize defensive and/or responsive systems and forces, with-
out diminishing the authority to effectively protect his own critical infrastruc-
ture from attack.

Evolution of JCS Rules of Engagement

Techno-violence against a critical US computer system, whether informa-
tion, communications, or command and control-related, represents hostile ac-
tivity which may trigger the applicable ROE. Until June 1986, the only US
peacetime ROE applicable worldwide were the JCS Peacetime ROE for US

428


Il

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.! 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


John F. Murphy

found and the extradition treaty between the United States and the country in
question contained a dual criminality requirement.5? 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 ofa 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.>© 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.°8 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.5?

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. 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
ofsome countries, especially those with a civil law background, to extradite their
nationals.6! 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.

333


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

2


Jeffrey H. Smith and Gordon N. Lederman

Status of Forces Agreements and Foreign Domestic Law

Stationing agreements and defense cooperation agreements memorialize the
consent of the host nation to the presence of US troops, set limits on troop num-
bers, and identify facilities. The United States also commonly enters into status
of forces agreements (SOFAs) to address legal jurisdiction over its forces. The
DoD/GC Paper notes that, by the end of 1998, the United States was a party to
103 SOFAs. Many require that the US notify the host nation of any significant
change regarding the capabilities or status of the military forces stationed in the
host country.

As the DoD/GC Paper states, if authorities intend to conduct information
operations from US bases abroad, a determination must be made as to whether
the relevant agreements require notifying the host nation and perhaps even re-
questing its consent.®? The paper also notes that such agreements often require
that US equipment not interfere with the host nation’s communication system
and that such equipment cannot violate the host nation’s laws and regulations.
Host nations may understandably be concerned about information weapons
criss-crossing their telecommunications equipment for fear of possible, uninten-
tional infection of the host nation’s computers. They might also be wary of the
counter-measures or acts of self-defense by the target nation ofa US information
operation. Yet, even ifa host nation opposed the use of US forces stationed in its
country to conduct information operations, the difficulty of attributing an infor-
mation operation to its true source might give US forces sufficient cover regard-
ing the origin of the attack, and thus might assuage the host nation’s concern
regarding its own possible vulnerability to counter-measures or reprisals.

It should be noted that foreign domestic laws impact the conduct of US de-
fensive information operations because foreign law enforcement officials may
not be authorized to conduct criminal investigations of possible computer crime
or information warfare unless the conduct at issue constitutes a crime according
to the laws of that particular country. Asa result, officials may not receive the ex-
pected levels of cooperation from foreign law enforcement officials in the inves-
tigation of an apparently criminal information operation emanating from a
particular country. Conversely, ifa foreign government does outlaw activity that
constitutes information warfare, US military officials may decide to refrain from.
offensively-oriented information operations conducted from their bases in that
particular country in order not to subject US forces to liability or culpability for
violating that foreign country’s laws. Furthermore, even if US forces would not
be liable or culpable legally, commanders may wish to avoid the appearance of
violating foreign domestic law.®3 As the DoD/GC Paper notes, conduct by

387


XIX International Law of Armed Conflict and Computer Network Attack:
Developing the Rules of Engagement
Brian T. O’Donnell and James C. Kraska... 2.226.600 00 ee eee 395

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

James P. Terry... 2.0. eee eee ene 421
XXI Is It Time For a Treaty on Information Warfare?

Phillip A. Johnson... 2.6... e eee e eee eee e eee e eee eee 439
Appendix

An Assessment of International Legal Issues in

Information Operations ....... 2.0. e eee eee eee eee ee 459
Contributors. . 6... cette e eens 531
Index... cece ee eee nett eee ee eneee 541


Index

threats posed by: 4-5, 25, 326-27
use of CNA for own ends: 103-04, 430, 432, 433-34, 445,
use of CNA for State ends: 103, 104
Toth v. Quarles: 356
Training
and information operations: 51
and information security: 328
and rules of engagement: 407-08
Training exercises
cyber attacks: 266-67
and use of CNA by commanders: 402, 403-04, 406-09
Trap doors: 290-92
Treaty of Westphalia: 64

U

Undersea cables, principles governing the destruction of 238
Union of Soviet Socialist Republics: 21-22, 38. See also Russia.
and espionage: 312, 313
and militarization of space: 272, 274, 280-81
and noninterference agreements with the United States: 448
United Kingdom: 38, 167, 190, 275, 444
and extradition: 333, 334, 336-37, 338
and reprisals! 200
United Nations
and definitions of aggression: 133-35
and efforts to improve domestic criminal legislation: 444-45
role in international Iaw enforcement efforts: 324
and terrorism: 324
United Nations Charter
Article 2(4). See United Nations Charter Article 2(4).
Article 39: 133, 283
133, 137-38, 283
133, 283
See United Nations Charter Article 51.
Chapter 7: 190
and CNA on satellite communication systems: 293-94, 295
and interruptions of means of communication: 133, 137-38
potential violations of: 176
and role of the UN Security Council: 133, 283
and the use of armed forces: 133, 190
United Nations Charter Article 2(4)
and abductions: 338-39
and illegal use of force: 100, 423-24, 425
and international humanitarian law: 164-65, 189

564




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 lawfal 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; fora 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, supranote 17, at II-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 1-12-13.

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
beaccomplished by the least intrusive means or lawfal 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


Appendix

V. COMMUNICATIONS LAW
A. International Communications Law.

International communications law consists primarily of a number of bilateral
and multilateral communications treaties. The most significant of these treaties is
the International Telecommunications Convention of 1982 (ITC), which has over
140 parties and which became effective for the United States in 1986. This
agreement, often referred to as the Nairobi Convention, is the latest in a series of
widely adhered to multilateral telecommunications conventions signed in this
century, which were preceded by multilateral agreements in the late 1800s pro-
viding protection for submarine cables. The current series of agreements estab-
lishes the International Telecommunication Union (ITU), which has the status
ofa specialized agency of the United Nations, and they invest the ITU with the
authority to formulate telegraph and telephone regulations which become bind-
ing legal obligations upon formal acceptance by ITU member nations. These
agreements also establish mutual legal obligations among the parties, several of
which are directly relevant to information operations.

Perhaps the most significant of these obligations is in Article 35, which pro-
vides that all radio “stations, whatever their purpose, must be established and op-
erated in such a manner as not to cause harmful interference to the radio services
or communications of other Members or of recognized private operating agen-
cies, which carry on radio service, and which operate in accordance with the
provisions ofthe Radio Regulations.” “Harmful interference” is defined in An-
nex 2 to the Convention as “interference which endangers the functioning ofa
radio navigation service or of other safety services or seriously degrades, ob-
structs or repeatedly interrupts a radio communication service operating in ac-
cordance with the Radio Regulations.” One of the clearest violations of this
provision would be the jamming or “spoofing” of a radio navigation service.
Without speculating on all the possible permutations of the application of this
provision to the broad range of information operations, suffice it to say that this
provision on its face would appear to restrict many such operations that involve
the use of radio broadcasting.

On the other hand, Article 38 of the ITC provides a specific exemption for
military transmissions: “Members retain their entire freedom with regard to
military radio installations of their army, naval and air forces.” In July 1994,
when the United States was considering broadcasting messages to the Haitian
people from U.S. military aircraft in international airspace urging them not to set
out to sea in hazardous vessels, the Office of Legal Counsel in the Department of

499


An Assessment of International Legal Issues

Ill. INTERNATIONAL LEGAL REGULATION OF THE USE OF
FORCE IN “PEACETIME”

A. International Law Concerning the Use of Force among Nations.

As discussed above, the law of war authorizes a nation engaged in an interna-
tional armed conflict to employ armed force to attack lawful military targets be-
longing to the enemy. Resolutions of the United Nations Security Council
(UNSC) may also authorize the use ofarmed force as provided in the UN Char-
ter. The focus of this section, however, is on the application of international law
principles in circumstances where there is neither a state of armed conflict nora
UNSC mandate—i.e., in peacetime, including the conduct of military opera-
tions other than war.

An exploration of the manner in which international law on the use of force
among nations is likely to apply to peacetime computer intrusions will serve
three distinct purposes: (1) it will enable a government that is resolved to con-
duct itself in scrupulous compliance with international law to avoid activities
that are likely to be regarded by the target nation and the world community as
violations of international law; (2) it will enable a government contemplating
activities that might be considered to violate international law to weigh the risks
of such actions; and (3) it will enable a government that is the victim ofan infor-
mation attack to identify the remedies afforded to it by international law, includ-
ing appeals to the Security Council, the use of force in self-defense, and other
self-help remedies not involving the use of force.

The frequently-heard question, “Is a computer network attack an act of
war?” invokes an obsolete concept not mentioned in the UN Charter and sel-
dom heard in modern diplomatic discourse. An act of war is a violation of an-
other nation’s rights under international law that is so egregious that the victim
would be justified in declaring war. Declarations of war have fallen into disuse,
and the act of war concept plays no role in the modern international legal system.
In any event, significant sanctions may follow from much less serious violations
of another nation’s rights that would not be regarded as acts of war.

The members of the United Nations have agreed in Article 2 (4) of the UN
Charter to “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.”

This obligation is elaborated in the Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation among States in Accordance with the

476


Information Operations in the Space Law Arena

of outer space, . . . itshall 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.!17 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. Ifa 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.

282


Index

and human rights considerations: 335-36
political offense exception to: 336-37, 338
Extradition treaties: 330-31, 332-37, 444-45

Falklands conflict: 190

Federal Bureau of Investigation: 355, 377, 421-22, 431
Federal Intrusion Detection Network (FIDNET): 358
Feliciano, Florentino: 127, 131-32, 135, 426-27
Fleet Information Warfare Center: 51-52

Foreign Intelligence Surveillance Act of 1978: 329
Fort Belvoir, Virginia: 51

Fort Meade, Maryland: 51-52

France: 271, 275, 337, 338

Franco-Prussian war: 402

Fuller, Major J. F.C: 402

Galileo: 271
Gatling, Richard J.: 402
General network vulnerability scanners: 28
Geneva Convention III of 1949, Article 4(4): 172
Geneva Convention IV of 1949: 168
Geneva Conventions of 1949

Common Article 2: 190

ICRC Commentary to: 164, 191

and targeting of civilians and civilian objectives: 225
Geneva Protocol I Concerning International Armed Contflicts (1977). See Protocol I.
Germany: 38, 337, 442
Gilbert, Geoff: 334, 340
Global Positioning System: 270-72, 277-78
Global War Game 2000, Naval War College: 402
Goddard Space Flight Center: 421 :
Gore, Albert, Sr.: 281
Great Britain: 38, 53, 190, 200, 275, 333, 334, 336-38, 444
Green, Leslie: 174, 175-76, 190
Group of Eight, and response to CNA: 442, 444, 452
Guerrilla warfare: 222
Gulf of Sidra operations (1981): 401

549




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 thatin 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 Jounal 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 ae DOROTHY DENNING, INFORMATION
WARFARE AND SECURITY (1998) and EDWARD WALTZ, INFORMATION WARFARE:
PRINCIPLES AND OPERATIONS (1998).

25. See Lisa Hoffinan, 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, ¢.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 ofthe 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. Fora 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; sce 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


Index

Unrestricted Warfare concept: 50
Civil liberties and role of the US military in domestic protection against CNA: 355-56
Civil wars: 222-23
Civiletti, Benjamin R.: 337
Civilians
military investigations of: 357-58
mission-essential: 197-98, 289-90
need to consider alternative actions in wartime to reduce casualties among: 156
potential effects on resulting from CNA on infrastructure: 158-59
prohibition on denial of “indispensable objects” to: 199, 224, 226-27, 290
prohibition on the use of as shields: 206-07, 410
targeting oft 66, 156, 193-200, 202, 223-24, 225-26, 410-11, 412
terrorist acts against: 323, 324-25
terrorization of: 66, 193-94, 195, 222-23, 226, 412
Clarke, Richard: 330
Clausewitz, Carl von: 47-48, 50, 54, 55, 363, 364
Clinton, William J.: 31, 74, 382, 430
Clinton Administration: 43, 267, 276, 278, 361, 430
Coalition warfare and analysis of CNA offensive operations: 156-57
Cohen, William: 317
Cold War: 38, 222, 223, 396, 400
Collateral damage, requirement to minimize: 166, 169-70, 204-05, 207, 290
Colombia: 334~35 .
Colonialism, wars against: 222-23
Combatant Commanders-in-Chief
rules of engagement issued by: 401, 405-06, 409, 412
and understanding of CNA: 413
and use of CNA: 401, 402-05, 406-07, 409-10, 414
Combatant commands, planning cells for information operations: 51
Combatants
computer operators as: 172
definition of: 195
identification of: 222-23
illegal: 197, 198, 363
subject to reprisals: 200
targeting of 195-97
Commission on National Security/21st Century: 367
Communications
jamming of 296-97
role of in international law: 62-65, 67-69
and the role of the UN Security Council: 67
Communications satellites: 41, 149-50, 283-86, 293-96, 380-82
Computer network attacks
“666” virus: 449
appeal to terrorists: 4, 353-54
approaches to analyzing offensive operations: 156-59

543


Wired Warfare: Computer Network Attack and the Jus in Bello

permissible against non-military objectives, such as the population. 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.‘” 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 ofits 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

195


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


XVII

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

Charles J. Dunlap, Jr.”

=
| [oa grabbing events like the denial of service attacks! on “dot com”

companies? in early 2000 and the excitement over 1999’s Y2K fears?
have served to turn public and governmental attention to the vulnerability of
computers in an increasingly network-dependent, information-oriented
society. For their part, militaries—and especially the US armed forces—have
for some time been grappling with the implications of the metamorphosis
spawned by the enormous advances in computer technologies of the last
twenty years. A general consensus exists that emerging digital capabilities are
stimulating what is popularly known as a “Revolution in Military Affairs,” or
RMA.‘ There are many aspects to the RMA,® but few would dispute that one
progeny is the rise of information operations ([O)® as a specific military
discipline.

In fact, the threat of cyberattack as a form of IO is a major concern of the
US armed forces. In its doctrine, the military gives the defense of information
systems open and prominent attention.” In military circles, IO is viewed as
an asymmetric strategy because it presents an opportunity for an adversary
with a narrow capability to successfully strike a seemingly more powerful
opponent like the United States. One commentator explains this phenomena
as follows:



An Assessment of International Legal Issues

certain duties on diplomatic missions. Article 41 provides that personnel of the
mission must respect the laws and regulations of the receiving state, that they
must not interfere in the receiving state’s internal affairs, and that the “premises
of the mission must not be used in any manner incompatible with the functions
of the mission as laid down in the present Convention or by other rules of gen-
eral international law or by any special agreements in force between the sending
and the receiving State.” Article 45 provides that the duties of the receiving state
continue in force even in the case of armed conflict between the parties, or if
diplomatic relations are broken off between them, even though the staff of the
mission is recalled. Planning for any information operations activity that in-
volves diplomatic premises, persons, archives, documents, or communications,
either as an instrument or as a target of the operation, must take into account
these international legal obligations.

F. Treaties of Friendship, Commerce, and Navigation.

The United States is a party to a large number of bilateral agreements with
other nations providing reciprocal arrangements for expedited tourism, trade,
and transportation between the parties. These agreements have various titles,
and their provisions differ somewhat. Most such agreements do not contain spe-
cific provisions on telecommunications, and they constitute perhaps the arche-
type of agreements that are likely to be regarded as suspended during an armed.
conflict because their provisions expediting free travel and trade between the
parties are incompatible with hostilities between them. Nevertheless, planning
for information operations, especially in peacetime, should include a review of
all significant international agreements between the United States and any other
nation that may be affected.

G. Status of Forces and Stationing Agreements.

When the military forces of one nation are present in the territory of another
nation with its consent, it is customary for the nations involved to execute writ-
ten agreements establishing the rights and obligations of the parties concerning
the visiting forces. “Stationing agreements” establish the consent of the host na-
tion to the presence of foreign troops; set agreed limits on their numbers, equip-
ment, and activities; and identify facilities for their use. These topics may also be
dealt with in a “defense cooperation agreement” or some other agreement pro-
viding for the overall defense relationship between the parties. It is also common
for the parties to execute a “status of forces” agreement (SOFA) that addresses

508


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 Self-Defense. Included within the inherent right of self-defense is
the right ofa 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
available51

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.5>

131


Appendix

* any act aimed at interfering with any systems of communication or any
other facilities or installations of the coastal State”

Once UNCLOS is in general effect, these restrictions on activities aboard
vessels in a coastal state’s territorial sea will be of relatively minor importance be-
cause UNCLOS limits the width of the territorial sea a nation can claim to
twelve nautical miles. At present, a number of nations claim territorial seas as
wide as 200 miles. The twelve-mile limitation on the width of the territorial sea,
together with other important guarantees UNCLOS establishes for the free op-
eration of military aircraft and vessels, have led DoD to strongly support ratifica-
tion of UNCLOS.

Article 109 of UNCLOS provides that all “States shall co-operate in the
suppression of unauthorized broadcasting from the high seas” and defines
unauthorized broadcasting, for the purposes of the Convention, as “the trans-
mission of sound radio or television broadcasts from a ship or installation on the
high seas intended for reception by the general public contrary to international
regulations.” The international regulations referred to consist primarily of the
provisions of the Nairobi Convention and the ITU’s Radio Regulations dis-
cussed in section V of this paper. This provision, which is generally regarded as
establishing new law, was designed to deal with “pirate radio” broadcasting from
vessels and platforms on the high seas, which became a significant problem for a
number of countries in the 1960s. These broadcasts were primarily commercial
in nature; by operating from the high seas they escaped the coastal state’s regula~
tion and taxation. Article 109 confers jurisdiction to prosecute persons en-
gaged in pirate radio broadcasts upon the state whose flag the ship flies, the state
where a broadcasting installation is registered, the state of which the broadcast-
ing person isa citizen, any state where the transmissions can be received, and any
state where authorized radio communication is suffering interference. Article
109 also provides that any state having jurisdiction to prosecute may “arrest any
person or ship engaged in unauthorized broadcasting and seize the broadcasting
apparatus.”

Article 113 requires parties to adopt domestic criminal legislation punishing
willful or culpably negligent damage to submarine cables belonging to other
parties by ships or persons under their jurisdiction.

These UNCLOS provisions have the potential to affect only a narrow cate-
gory of information operations, but they will have to be considered when deci-
sions are made concerning those operations to which they do apply, at least in
peacetime. UNCLOS does not expressly address how it will apply during an in-
ternational armed conflict. In accordance with the general principles discussed

505


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
ofan attack on vital computer systems, the temptation to respond in kind would
be considerable. Yet the ultimate source ofa 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 ina 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 ofits 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 ofa server can be accomplished quickly and secretly, and even
if server’s vulnerability has been detected before, not every trespass on a server
is worth preventing. Unless the involvement of 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

227


James P. Terry

important values by compelling the opposing participant to terminate the
condition which necessitates responsive coercion.22

This definition simply requires a rational relationship between the nature of
the attack and the nature of the response. Although the relationship need not ap-
proach precision, a nation subjected to an isolated intrusion and disruption ofan
important computer system may not be entitled to launch a strike on the of-
fender nation. Other canons of military practice, such as conservation of re-
sources, support the principle of restraint in defense. The United Nations has
condemned as reprisals those defensive actions that greatly exceeded the provo-
cation.23 Where there is evidence that a continuation of destructive electronic
sabotage will occur, beyond the triggering event, that could threaten the very fiber
ofa nation’s ability to defend itself, however, a response beyond that related to the
initial intrusion would be legally appropriate to counter the continuing threat.

Because the real-time relationship between threat and threat recognition is
often compressed in the techno-violence arena, strategy developments severely
limited with respect to the non-military initiatives that may be considered in re-
sponse to cyber-attack, although they are always the options of choice where
available. Traditional means of conflict resolution, authorized by law and cus-
tomary practice, are often precluded because attacks on computer systems are,
by nature, covert in execution, unacknowledged by the State or group sponsor,
and practiced with silent effectiveness.

It must be noted, however, that non-coercive efforts to avoid attacks on com-
puter systems and telecommunication networks are also important. Diplomatic
action, alone or in concert with allies or international organizations with con-
ceivable successful impact upon a State or group considering such a cyber initia-
tive, should be considered and employed whenever possible. In 1998, for
example, the UN General Assembly passed Resolution 53/70,74 an initiative of
the Russian Federation, that called upon Member States “to promote at multi-
lateral levels the consideration of existing and potential threats in the field of in-
formation security.”25 The United States supported this resolution with the
following pertinent comments:

The General Assembly’s adoption of the resolution in plenary will launch the
international community on a complex enterprise * encompassing many
interrelated factors which delegates . . . do not ordinarily address. For example,
the topic includes technical aspects that relate to global communications—as well
as non-technical issues associated with economic cooperation and trade,
intellectual property rights, law enforcement, anti-terrorist cooperation, and

427


Charles J. Dunlap

British regulars used to suppress the colonists’ growing protests against imperial
tule. For these and other reasons, the scheme for national security found in the
Constitution principally contemplates not the large standing forces we have to-
day, but a rather small number of regulars augmented by huge state militias.37 In
short, in practical terms it is doubtful that the Founding Fathers ever envisioned
a standing army large enough to function as any kind of police force on a regular
basis.

While the US military has been used successfully from time to time to quell
civil disorders that overwhelm civilian resources, the record of the relatively few
times it has been used for an extended period for a law enforcement-type mis-
sion is less than sanguine. Indeed, it was the intemperate behavior of Federal oc-
cupation troops during the post-Civil War Reconstruction Era that led to the
passage of the Posse Comitatus Act in 1878.38 The Act—which criminalizes the
use of the military to enforce the law absent specific authority—remains the
principle limitation on the employment of the armed forces for internal security
purposes.

Of course, the Posse Comitatus Act is not intended to frustrate the military’s
ability to engage in bona fide national security-related activities. Exactly what
constitutes a national security activity appropriate for military attention, how-
ever, became blurred during the Cold War, and especially during the domestic
unrest of the Vietnam era. The result was an unwholesome involvement of the
military establishment in the personal affairs of thousands of law-abiding US citi-
zens. Professor Loch Johnson reports, for example, that “NSA computers were
fed every single cable sent overseas by Americans from 1947 until 1975 [and]
Armny intelligence units conducted investigations against 100,000 Americans
during the Vietnam War.”59

The excesses of military and civilian intelligence agencies during this period
led to Senate investigations in the 1970s (the Church Committee)*? and sub-
stantial restrictions on the ability of military organizations to scrutinize US citi-
zens.*! Nevertheless, by the early 1980s the nation’s drug crisis led Congress to
enact a number of measures to involve the military in efforts to halt the tide of
narcotics flowing into the country and to help stem the crime explosion cata-
lyzed by illicit drugs.42 While the armed forces are still generally prohibited
from such activities as conducting searches and seizures and effecting arrests, the
military counterdrug effort—especially in technical support and border surveil-
lance activities—amounts to billions of dollars and involves thousands of uni-
formed personnel.

Asa result of such initiatives, the traditional reluctance to employ the military
in a domestic security role appears to be eroding. 43 Regrettably, however,

357


Meeting the Challenge of Cyberterrorism

same point that Rand analyst and cyberwar expert Martin Libicki wrote about in
Foreign Policy.>4 In this regard, I think it would be a mistake to make too much of
the past denial-of-service attacks on commercial sites. In the first place, most
sites were impeded for only a short time, leading many experts to characterize
the incidents as “little more than criminal mischief.”5> Ironically, the attacks
may have caused little revenue loss. Newsweek wryly noted that since “dot-coms
typically lose money on every sale they make, they might come out ahead” as a
result of the attacks.56

As Libicki observes, there is a great difference between public commercial
websites, and the sensitive military and civilian infrastructure operating systems
whose incapacitation on a grand scale might stagger even a country like the
United States. However vulnerable the former, the latter are much more secure
and, in any event, often operate in a closed loop, independent mode requiring
unique expertise even if access is somehow achieved. This is a key reason why,
for example, Bruce F. Wollenberg, a professor of electrical engineering at the
University of Minnesota, insists that the US power grid “isn’t hacker friendly.”57

Dan Kuehl, a respected professor at the National Defense University, argues
that the reason a full-fledged cyberattack has not been launched is “solely be-
cause no state or non-nation state actor has yet seen sufficient strategic advantage
to be gained by doing so—and this condition will not last indefinitely.”58 I dis-
agree because I believe the requisite expertise is much rarer than many assume,
and much of that expertise is on the side of the good guys. We live in a world of
Saddam Husseins, Slobodan Milosevics, and Osama bin Ladens, who are
hell-bent to inflict harm upon us in any way they can. These are people to whom
the logic of “strategic advantage” is expressed in the most savage acts of terror
they can manage to accomplish. They are smart, ruthless, moneyed, and moti-
vated, yet have not achieved a crushing cyberassault.

We tend to discount too readily our own defensive capabilities. Recall that
much was made of the supposed “hacker” capabilities of the allegedly com-
puter-literate Serbs and others during the Kosovo campaign. Evidently, they
tried hard. According to Lieutenant General William J. Donahue, “hackers
came at us daily, hell-bent on taking down NATO networks.”5? Yet, the end
result was failure: no NATO combat deaths, and a near-zero effect on the ulti-
mate military outcome. Similarly, despite all the allegations of rampant, damag-
ing attacks in the private sector, the reality is that the US economy continues to
roar. Are we to believe that there are thousands of malicious people with diverse
agendas at scores of locations around the globe fully capable of devastating us
with keystrokes who are collectively refraining from doing so because of some
serendipitously uniform appraisal of “strategic advantage”? My assessment of

360


Axticle 51 or the customary right thereto? Ifa 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 bellum and jus 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


Horace B. Robertson , Jr.

There, the Security Council, with the concurrence of the United States and
the Common Market’s “Group of Ten,” “strongly condemnfed]” 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.4>

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 ona
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.4+

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 fature application, a strong air of
romanticism.*5

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

129


John F. Murphy

40. Convention for Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept.
23, 1971, 24 U.S.T. 565, T.LA.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, eg., id., art. 8.

43. See, e.g., id., art. 7.

44, For further discussion, see John F. Murphy & Jon Michael Dumont, The Rendition of
Intemational 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. Sce 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 Intemational 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, OJ. (C313) 02.

66. Id, at 179.

67. See US-Italy Extradition Treaty, Oct. 13,1983, art. IV, T.LA.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 Altematives: From Fugitive

347


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,!3 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.”!4 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 ofa target State.

326


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.’ 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

Asa 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!® 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.!!

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,” !? 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


John F. Murphy

Supplementary Extradition Treaty of 1985,% 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.°5 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.%6 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.®”

Asa result of these many barriers, the extradition process has been described as
“a creaking steam engine of an affair.”°8 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.”9? 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.”!00 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 1990,1!
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.192 Outside of Europe, the doctrine of hot pursuit is apparently not
widely utilized as a method of rendition.19

The methods of rendition most often utilized as alternatives to extradition are
exclusion and deportation! Exclusion may occur when fugitives are appre-
hended as they attempt to enter a country, and deportation may be an option

337


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.?8 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 194929
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.” 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.3! How-
ever, ifthe 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.

172


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 successfull 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/21st 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. Atpage7
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 Tofflers 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 ofarmed conflict. See NATIONAL SECURITY LAW 443 (John N. Moore et al., eds.

317


Charles J. Dunlap

24. Id.

25. Office of the Assistant Secretary of Defense (Public Affairs), Joint Task Force On Computer
Network Defense Now Operational, December 30, 1998, (press release), www.defenselink.
mil/news/Dec1998/b12301998_bt658-98.html.

26. See Frank Wolfe, Joint Task Force To Direct Pentagon’s Cyber Defense, DEFENSE DAILY,
January 26, 1999, at 1.

27. US Space Command, USSPACECOM Takes Charge of DoD Computer Network
Defenses, Release No. 19-99, October 1, 1999 (press release), www.spacecom.af:mil/usspace/
new19-99.htm.

28. US Space Command, Joint Information Operations Center Joins USSPACECOM,
Release No. 20-99, October 1, 1999 (press release), www.spacecom.af.mil/usspace/new20-
99.htm,

29. Douglas J. Gilbert, High-Tech Lab Ties Computers to Crimes, American Forces Press
Service, November 1999, www.defenselink.mil/news/Nov1999/n11021999_9911023.html.

30. Id.

31. Linda D. Kozaryn, DoD Helps Hometown USA Confront Terrorism, American Forces
Press Service, January 2000, www.defenselink.mil/news/Jan2000/n01132000_20001133.htm.

32. JP 1-02, supra note 6.

33. Department of Defense, Report to Congress: Kosovo/Operation Allied Force
After-Action Report, January 31, 2000, at 99, www.defenselink.mil/pubs/kaar02072000.pdE.

34. General Richard Myers, Special Briefing re: Current Activities of U.S. Space
Command, January 5, 2000 (DoD News Briefing), www.defenselink.mil/news/Jan2000/
101052000_t104myer.html.

35. Toth v. Quarles, 350 U.S. 11, 17 (1955).

36. Fora discussion of the author's views of this issue, see generally Charles]. Dunlap, Jr., Revolt
of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment, 62 TENNESSEE
Law REVIEW 643 (1995).

37. Id, at 648649.

38. Act of June 18, 1878, ch. 263, § 15, 20 Stat. 152 (current version at 18 US Code § 1385
(Supp. 1999).

39. LOCH K. JOHNSON, A SEASON OF INQUIRY 223 (1985).

40. See generally, id.

41, See, e.g., Foreign Intelligence Act of 1978, 50 U.S.C.A. §§ 1801-1811 (1991) and Exec.
Order No. 12,333, 46 FEDERAL REGISTER 59,941 (1981) (limiting, inter alia, the use of intelligence
agencies including those of the armed forces to collect information on persons within the US).

42, See, e.g., Department of Defense Authorization Act, Pub. L. No. 97-86, § 905(a)(1), 95
Stat. 1099, 1115 (1981), amended by National Defense Authorization Act, Pub. L. No. 100-456, §
1104(a), 102 Stat. 1918, 2043 (1988); National Defense Authorization Act for Fiscal Year 1990 and
1991, Pub. L. No. 101-189, § 1216(a), Nov. 29, 1989, 103 Stat. 1352, 1569 (codified at 10 US
Code § 371-380 (1988).

43. See generally, Charles J. Dunlap, Jr., The Police-ization of the Military, 27 JOURNAL OF
POLITICAL AND MILITARY SOCIOLOGY 217 (1999).

44 Id.

45. See Bob Brewin, Report: Allow Cybenvar Response, FEDERAL COMPUTER WEEK, March
29, 1999 (citing a report by the National Resource Council), www.few.com/few/articles/1999/
FCW_032999_255.asp.

46. See www.usarec.army.mil/hq/apa/slides/VIPRecruitingbrief/ts1d006.htm. See also Robert
Burns, Poll: Americans Appreciate the Armed Forces, PACIFIC STARS AND STRIPES, October 19,
1999, at 1.

369


Phillip A. Johnson

system. Unauthorized access may be obtained by exploiting a security weakness
in the target’s operating system, by unauthorized use ofa genuine user identifi-
cation and password, or by other means. Even if an intruder does no apparent
harm, the mere fact that an intruder has gained unauthorized access renders the
system and its contents suspect, since an intruder could have altered stored data,
changed the operating system, or introduced malicious logic such as a virus,
worm, or logic bomb. An intruder may even damage the system to the point
where it becomes unusable. The remainder of this chapter will focus primarily
on the question of whether it would be desirable to negotiate international
agreements to prohibit or regulate CNA.

At this point in history, there are a number of “revealed truths” concerning
CNA that make it different from prior methods and means of conducting hostil-
ities. I list them here as common points of departure; the reader can find a fuller
discussion of them in the other contributions to this volume:

* The more a nation relies on sophisticated information systems, the more

vulnerable it is to interference with them;

* Geography has ceased to be relevant to the security of information systems
that are connected to the Internet or that are accessible by radio;

* The worldwide use of comparable equipment, operating systems, and
software greatly facilitates CNA;

* Information technologies change rapidly;

* Most advances in information technology are developed by individuals or
companies for commercial purposes;

* Developing at least some capability to interfere with other nations’
information systems is relatively cheap and easy, compared to other
modern weapons systems, and the necessary expertise and equipment are
widely available;

* CNA “offense” currently seems to be dominant over CNA “defense,” but
the balance between them might change quickly and dramatically;

* In most cases it is difficult to locate and identify computer intruders, to
discover their motive and intent, and to determine whether their acts are
attributable to State sponsors; and

* Because many “dual-use” information infrastructures whose support to
military operations makes them legitimate military targets are also used for
noncombatant purposes, interference with them may endanger the safety
of persons and property protected by the law of war from deliberate attack
and from disproportionate collateral damage.

441


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 ofa State that is not a party toa 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 ifno physical destruction ensues? How do we regulate
computer espionage to avoid the appearance ofa 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


Computer Networks, Proportionality, and Military Operations

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 ofa 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 ofan 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
Jaunchers 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

154


Appendix

territory of a neutral state, but not acting on its behalf, when the neutral state is
unable or unwilling to fulfill its responsibility to prevent the use of its territory as
a base or sanctuary for attacks on another nation. This doctrine has venerable
roots in U.S. foreign and defense policy, dating at least to the Caroline incident.
In December 1837, Canada, which was still a British colony, was fighting an in-
surrection. More than 1,000 insurgents were encamped on both the Canadian
and U.S. sides of the Niagara River. A small steamer, the Caroline, was used by
the insurgents to travel across and along the river. On the night of December 19,
1837, a party of British troops crossed the Niagara and attacked the Caroline in
the port of Schlosser, New York, setting the vessel on fire and casting it adrift
over the Niagara Falls. One U.S. citizen was killed on the dock, another was
missing, and several others were wounded. The United States demanded repara-
tions. The British Government responded that it had acted in self-defense. Sec-
retary of State Daniel Webster agreed that the doctrine of self-defense in neutral
territory was a valid principle of international Jaw, but asserted that it did not ap-
ply in the circumstances of this case. Britain continued to maintain that its action
was legal, but nonetheless apologized for the invasion of U.S. territory. No repa-
rations were paid.

In 1986 the United States bombed Libya as a response to Libya’s continuing
support for terrorism against U.S. military forces and other U.S. interests. In
June 1993 U.S. forces attacked the Iraqi military intelligence headquarters be-
cause the government of Iraq had conspired to assassinate former President
Bush. In August 1998 U.S. cruise missiles struck a terrorist training camp in Af-
ghanistan and a chemical plant in Sudan in which chemical weapons had been
manufactured. The rationale articulated for each of these actions was
self-defense. Acts of self-defense must satisfy the tests of necessity and propor-
tionality, but there is no requirement that an act of self-defense use the same
means, or target the same type of object, or otherwise be symmetrical to the
provocation, or that the action taken be contemporaneous with the provoca-
tion, particularly ifthe attacker is responding to a continuing course of conduct.

B. Acts not Amounting to the Use of Force.

In its 1949 decision in the Corfit Channel Case, the ICJ ruled that the intrusion
of British warships into Albanian territorial waters, which it found to have been
without justification under any principle of international law, constituted a vio-
lation of Albania’s territorial sovereignty. The result seems to be recognition ofa
general international law of trespass, although the remedy may be limited to a
declaratory judgment that the victim’s rights have been violated.

481


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
ex e 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) modem information systems technology to military purposes was so new that 10 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. LJ., Ser. A, No. 10, at 4,18.

106. Cf I.CJ. 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 LL.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

262


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.3>

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

174


Computer Network Attacks by Terrorists

penalty,”84 and asa result its imposition is not prohibited by general international
Jaw. 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 noms.

The best known of these authorities is the decision of the European Court of
Human Rights in Soering v. United Kingdom.5> 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.8¢

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®7
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,®? as the “hot issue” of
extradition law.% At that time, the political exception was regarded as perhaps
the primary barrier to the extradition of international terrorists.®! 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,” and it is unclear whether the politi-
cal offense exception remains a major barrier to extradition at the present time.”

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


Neutrality and Information Warfare

but subject to other rules of international law, i.e., LOAC); Territorial Sea Convention, stipra 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, 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 4 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, {] 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, 7.5.2; SAN REMO MANUAL, supra note 12, {ff 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, { 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, 8.2.3; SAN REMO MANUAL,
supra note 12, 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, {| 8.2.3; SAN REMO MANUAL, stipra note 12, fj 140-45, 153-58.

64. Cf Horace B. Robertson, Jr., Modem Technology and the Law of Armed Conflict at Sea, in
Robertson, supra note 5, 362, 370; New Technologies and Anned 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, §{] 7.6-7.6.2; SAN REMO
MANUAL, supra note 12, §] 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, {ff 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 effective and impartial. Helsinki Principles 5.2.10, 5.3, supra note 13, at 513; ANNOTATED
SUPPLEMENT, supra note 5, §{] 7.7-1-7.7.5; SAN REMO MANUAL, supra note 12, §f] 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


Brian T. O’Donnell and James C. Kraska

development of concrete legal analysis tends to lag the advancement in tech-
nology, particularly in the application of international law to new methods of
warfare.” It is equally important to recall that history is replete with examples
in which superior military technology was squandered, and advantage was
surrendered, because the army employing the new weapon had an inattentive
or feckless approach to developing corresponding doctrine and tactics for its
employment.® In the modern era, the development of appropriate ROE for
CNA, along with operational doctrine, tactics, and force structure, will deter-
mine whether CNA is an effective weapon.

In the mid-1990s, the initial US focus on computers and military conflict
resided almost exclusively in defending perceived weaknesses and vulnerabili-
ties in critical national information infrastructure—especially electronic bank-
ing, communications, and industrial energy grids. This focus, which emerged
within the Department of Defense (DoD) as “Information Warfare—Defense”
(fWD) was replicated by other governmental agencies, who also became con-
cerned after 1995 about the vulnerability of their networks, coinciding with
the widespread use of the Internet.? All of these efforts migrated under the um-
brella term, “Computer Network Defense” (CND), which has served to con-
centrate interagency resources and attention toward protecting and defending
critical computer and information networks from sabotage by individual hack-
ers, terrorist groups, and unfriendly governments.!° Planning for CND was ac-
celerated with the advent of Presidential Decision Directive 63 (PDD-63) in
May 1998, which ordered federal agencies, in concert with the private sector
and state and local authorities, to create defenses against attacks on critical in-
frastructures from network assaults from all State and non-State actors that po-
tentially threaten American “national and economic security.”!1 The DoD
responded by standing up the Joint Task Force Computer Network Defense
(TF-CND), which was renamed Joint Task Force Computer Network Oper-
ations (ITF-CNO).!? The JTF is assigned to Commander-in-Chief, United
States Space Command, but has representatives from each military service and
many government agencies.!? The CND movement has made great progress
in identifying information infrastructure vulnerabilities, and organizing and
resourcing defensive interagency plans to address them. Initial panic at per-
ceived gaping holes in critical information infrastructure has recently given
way to a more measured and sober, and more confident, vulnerability assess-
ment. Now that the concern over CND has stabilized, US planners, particu-
larly in the military, have begun to more seriously consider the potential
advantages to be gained in military operations by offensive attack against an ad-
versary’s information infrastructure.

397


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 Anned 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,
411-12, 418-20, 430, 448, 450, 493; Continental Shelf Convention, supra note 44, arts. 1, 3-5(1),
15 ULS.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.TS. 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, supranote 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
Comission 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), supranote 18, § 336 cmt. c & r.n.3; George K. Walker, Integration
and Disintegration in Eusrope: 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 CJ. 7, 39 (art. 62 a customary norm);
Fisheries Jurisdiction (U.K. v. Ice.), 1973 I.CJ. 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

255


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 ofa 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.”28

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.*?
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 oflegal
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 ofits 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


Self-Defense against Computer Network Attack

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:

[Nt 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.”#1 The second
case was that of the Israeli air strike against the Iraqi nuclear reactor in 1981.

128


Douglas S. Anderson and Christopher R. Dooley

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.9” 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
itis 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,°8
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 ofna-
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.°?

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.”! It is generally ac-
cepted to include nuclear, chemical, and biological weapons.1©1 Even though
WMD couldalso include other weapons, notwithstanding the Russian position
statement to the contrary, 10? the use ofan information weapon is not likely to be
viewed by the US as a weapon of mass destruction. Ordinarily, its effects can
be controlled so as not to destroy large numbers of people. For example, the

279


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. Ifan in-
cident of CNA is effected by “indirect penetration” 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, ifit 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

79


An Assessment of International Legal Issues

practice of assigning intelligence operatives to embassy staff positions in which
they enjoy diplomatic immunity from prosecution. The only remedy for an of-
fended host nation is to declare such persons to be persona non grata, which ob-
ligates the sending nation to remove them from the country.

The treatment of espionage under international law may help us make an
educated guess as to how the international community will react to information
operations activities. As discussed in Section III of this paper on the use of force,
international reaction is likely to depend on the practical consequences of the
activity. Iflives are lost and property is destroyed as a direct consequence, the ac-
tivity may very well be treated as a use of force. If the activity results only in a
breach of the perceived reliability of an information system, it seems unlikely
that the world community will be much exercised. In short, information opera-
tions activities are likely to be regarded much as is espionage—not a major issue
unless significant practical consequences can be demonstrated.

That leaves the issue of the possible criminal liability ofan information opera-
tor who may later come into the custody ofa nation that has been the victim of
an operation in which he or she has engaged. As with a spy, there is no evident
theoretical reason why such an individual could not be prosecuted for violation
of the victim nation’s criminal laws. As a practical matter, however, the prob-
Jems of detection and attribution of information operations activities at the na-
tional level are daunting; the likelihood of being able to prove in court that an
individual engaged in a certain information operations activity—while not im-
possible—seems small.

Finally, it deserves mention that there is an established division of labor
within the U.S. government between the intelligence community and the uni-
formed military forces concerning “covert action.” Generally speaking, the in-
telligence community conducts covert action operations in peacetime that do
not consist of traditional military activities. It remains to be seen how informa-
tion operations activities will fall within this division of labor, especially when
they are associated with military operations other than war.

D. Assessment.

Information operations activities are unlikely to fall within the definition of
spying in wartime, although a limited category of activities related to informa-
tion operations may so qualify. Information operations activities are more likely
to fall within the category of peacetime espionage. Perhaps more importantly,
the reaction of the world community to information operations that do not

518


Douglas S. Anderson and Christopher R. Dooley

(3) That States that launch space objects are liable for any damage they may do inspace, 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 RACE 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.TS. 13, TIAS 7503 (ratified by the US on Sept. 30, 1972); Rebecca Johnson, Multilateral Anns
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-july1998.html (on file with authors).

73. Id. at 24.

74, Id.

75. In an article published in the Liberation Anny 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, at Al, 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).

303


An Assessment of International Legal Issues

invasion, attack, bombardment, and blockade. These acts may be directed at the
victim nation’s territorial integrity or political independence, or against its mili-
tary forces or marine or air fleets. They all have in common the presence of
troops and the use of traditional military weapons. The question before us is how
they are likely to apply to computer network attacks.

Further, when one looks for provisions describing a sanction or remedy, only
two provisions present themselves: the authority of the Security Council to au-
thorize various sanctions, including the use of the members’ armed forces, when
it finds there is a “threat to the peace, breach of the peace, or act of aggression;”
and Article 51’s recognition of the inherent right of self defense “ifan armed at-
tack occurs.”

There is no requirement that a “threat to the peace” take the form of an
armed attack, a use of force, or any other condition specified in the charter. The
Security Council has the plenary authority to conclude that virtually any kind of
conduct or situation constitutes a “threat to the peace” in response to which it
can authorize remedial action ofa coercive nature. Nothing would prevent the
Security Council from finding that a computer network attack was a “threat to
the peace” ifit determined that the situation warranted such action. It seems un-
likely that the Security Council would take action based on an isolated case of
state-sponsored computer intrusion producing little or no damage, but a com-
puter network attack that caused widespread damage, economic disruption, and
loss of life could well precipitate action by the Security Council. The debate in
such a case would more likely center on the offender’s intent and the conse-
quences of the offending action than on the mechanism by which the damage
was done.

The language of Article 51, on the other hand, requires an “armed attack.” A
close parsing of the language would tend to limit its effect to attacks and inva-
sions using traditional weapons and forces. On the other hand, there is a
well-established view that Article 51 did not create the right of self-defense, but
that it only recognized a pre-existing and inherent right that is in some respects
broader than the language of Article 51.

History has also seen the emergence of such derivative doctrines as “anticipa-
tory self-defense” and “self-defense in. neutral territory,” both of which have
been relied upon by the United States in certain circumstances. “Anticipatory
self-defense” permits a nation to strike the first blow ifit has good reason to con-
clude that it is about to be attacked. The JCS Standing Rules of Engagement im-
plement this doctrine in their authorization of the use of force in response to a
demonstration of “hostile intent” by an adversary. “Self-defense in neutral terri-
tory” is the right to use force to neutralize a continuing threat located in the

480


Wired Warfare: Computer Network Attack and the Jus in Bello

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.
jans 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;% 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;

(0) 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 nota 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

207


Louise Doswald-Beck

Le Comité international estime que la seule maniére de mettre les populations civiles a ’abri
de certains des plus graves périls crées par l’état de guerre est interdiction pure et simple du
bombardement aérien. . . . I adresse dans ce sens un appel pressant la Conférence.

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
1922-February 1923 (see esp. arts. 22-24) fhereinafter 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 modem 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:

Inso 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 ofa permanent character and is
established outside the combat zone in order to shelter military or civilian wounded and sick from
Jong 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

181


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.!23

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.””!5 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.!26 Also, in 1994, the United States and Mexico concluded a Treaty to
Prohibit Transborder Abductions!?” (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.!2° They provide
prosecutors with a channel for sending requests for assistance in obtaining evi-
dence through a Central Authority in one country!° 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


Contributors

Marine Corps he served as Legal Counsel to the Chairman of the Joint Chiefs of
Staff from June 1992 through June 1995. During this tenure, he provided legal
guidance on military operations in Iraq, Somalia, Rwanda, and Haiti, and legal
advice on support initiatives in Russia and other States within the former Soviet
Union. After retirement, Colonel Terry was appointed to a senior position
within the Department of the Interior in Washington. A graduate of the Uni-
versity of Virginia, Colonel Terry received the Doctor of Juridical Science
(S.J.D) Degree in International Law from The George Washington University.

Mr. David Tubbs is the Executive Vice President, Chief Technology Offi-
cer, anda cofounder of eRiskSecurity, Inc. eRiskSecurity is a California corpo-
ration with the mission of securing information systems from all avenues of
attack through a systems-level review of vulnerabilities and threats, including
hardware, software, physical, and social engineering attacks. He received five
Department of Defense awards for research project excellence while employed
with McDonnell Douglas. Mr. Tubbs has a B.A. in Physics and Mathematics
(magna cum laude) from Point Loma College in San Diego and has completed
coursework in such areas as Mathematical Methods of Physics, Microprocessor
Design, and Optical System Design. He has designed and taught courses entitled
Fiber Optics—Theory and Applications. Additionally, Mr. Tubbs is a member
of the International Computer Security Association (ICSA) and the High Tech-
nology Crime Investigators Association (HTCIA).

Professor George K. Walker is Professor of Law, Wake Forest University
School of Law. He was the Charles H. Stockton Professor of International Law
at the US Naval War College from 1992-93. Professor Walker retired as a Cap-
tain in the US Naval Reserve after serving aboard destroyers, qualifying as a Sur-
face Warfare Officer, and duty as Commanding Officer of six Naval Reserve
units. He was a Woodrow Wilson fellow at Duke University and received a
Sterling Fellowship while holding a research position at Yale Law School. Pro-
fessor Walker has edited or written ten books and over forty book chapters, law
journals, and continuing education publications, as well as several state statutes.
Professor Walker was among the group of international lawyers and naval ex-
perts that produced the San Remo Manual on International Law Applicable to
Armed Conflicts at Sea. He has served as a vice president of the North Carolina
Bar Association and on the Executive Council of the American Society of Inter-
national Law. Professor Walker is also a member of the American Law Institute.

Professor Ruth G. Wedgwood is a Professor of Law at Yale Law School,
and is also Senior Fellow and Director of the Project on International Organiza-
tions and Law at the Council in Foreign Relations in New York City. Currently
on a leave of absence from Yale Law School, she is serving as the Edward B.

539


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


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), ifits 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 ofan 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.>” 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


Meeting the Challenge of Cyberterrorism

No other country or group can approach the US conventional-weapon
superiority. This is why many terrorists find information terrorism an attractive
alternative to traditional forms of terrorism. Cyber-terrorism allows
terrorists—both foreign and domestic—to inflict damage with no harm to
themselves and little chance of being caught. It is a way for the “weak” to attack
the “strong,” particularly to disrupt a stronger force at a key time during an
operation.&

The threat of cyberterrorism as a form of IO is especially troublesome to the
US armed forces because it can strike at vital systems not under military control.
The Department of Defense (DoD) has officially acknowledged that today it is
“dependent upon non-DoD assets—the international and national infrastruc-
tures, [and] other facilities and services of the private sector,”? and these could be
targets of cyberattacks. The Air Force admits that this “Achilles’ heel of the
United States can be the great equalizer for a militarily inferior adversary.”!°

Still, “cyberterrorism” as a term of art does not, per se, find a home in the
Pentagon’s lexicon.!! “Terrorism,” however, is explicitly defined. The DoD
describes it as “the calculated use of unlawful violence or threat of unlawful vio-
lence to inculcate fear; intended to coerce or to intimidate governments or soci-
eties in the pursuit of goals that are generally political, religious, or
ideological.”!2 Cyberterrorism might therefore be understood as using digital
technologies to achieve the aims of traditional terrorism.

The purpose of this essay is to briefly outline the military’s response to the
threat of cyberterrorism, and to examine some of the emerging policy issues at-
tendant to that response. In addition, I will discuss a few issues associated with
using the tools of the cyberterrorist against America’s enemies, and the complica-
tions that doing so presents to democratic societies. In addressing both these per-
spectives, I will be more concerned with identifying areas for further study than
with presenting refined solutions. Having said that, I will attempt to anchor the
discussion wherever possible in the context of American democracy and how it
should shape the role of the military in addressing the dangers of cyberterrorism.

The Military Response

For at least five years, uniformed leaders have publicly discussed the vulnera-
bility to cyberattack on the digital networks upon which the military relies.
Yet according to policy in place since 1995, the responsibility for the security of
critical non-DoD “information systems and computer-based systems and net-
works that can be distributive in nature” remains with civilian law enforcement

354


Louise Doswald-Beck

from becoming. 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.26

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 oflicensing 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 matériel by 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
ofits 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

175


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,*” 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


James P. Terry

34, See James Terry, The Iranian Hostage Crisis: International Law and US Policy, JAG JOURNAL
31-79 (Summer 1982).

35. ROBERT OPPENHEIM, INTERNATIONAL LAW 299 (8th ed. 1955).

36. Ian Brownlie, The Use of Force in Self-Defense, BRITISH YEARBOOK OF INTERNATIONAL
LAW 183, 207 (1961).

37. Address by Secretary of State Kellogg before the American Society of International Law,
April 28,1928, PROCEEDINGS OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW 141,
143 (1928).

38. George Shultz, Address before the Low Intensity Warfare Conference, National Defense
University, Washington, D.C., Jan. 15, 1986.

437


Wired Warfare: Computer Network Attack and the Jus in Bello

AIRPOWER JOURNAL, Fall 1996, at 99, and Mark Shulman, Discrimination in the Laws of
Infomation 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 (1) 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, att. 38(1)(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 ofa belief that this practice is rendered obligatory by the existence of 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.1J. (er. A) No. 10(1927); Asylum Case (Col. v. Peru), 1950 LLCJ. 266;
Case Concerning Right of Passage over Indian Territory (Port. v. India), 1960 ILCJ. 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 Intemational 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.CJ. 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
wat)... 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 AUR 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/wr2k1. The abuses were condemned in UN Commission on Human.

211


Information Operations in the Space Law Arena

from outer space. During times ofarmed 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
ifmilitary 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 Jaws 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.html.

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 anda
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 & CAI, March 11, 1999, atn.p.

298


Information Operations in the Space Law Arena

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
ina 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.!49

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.159

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 longas their damage or
destruction would produce a significant military advantage!5? or accomplish a
legitimate military objective.155 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.

Ina long and protracted conflict, damage to the enemy’s economy and research
and development capabilities may well undermine its war effort, but ina short and
limited conflict it may be hard to articulate any expected military advantage from
attacking economic targets. !54

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,

288


Brian T. O’Donnell and James C. Kraska

60. Id, at 2, 159 States have ratified Protocol I, including a majority of the NATO countries,
Yugoslavia, Russia, and China, but not the United States.

61. Protocol I, supra note 50, art. 51. Indiscriminate attacks are defined as those which are not
directed at a specific military objective.

62. Wright, supra note 59, at 1, footnote 1.

63. See generally, ANNOTATED SUPPLEMENT supra note 57, at chapter 8, fora discussion of the
Jaw of targeting.

64. DoD Dir 5000.1, Defense Acquisition (2000). See also ANNOTATED SUPPLEMENT, supra
note 55, at 437. The weapons review is a two-step process, the first review is prior to acquisition,
the second review occurs prior to use.

65. SROE, supra note 26, at A-2.

66. Russian officials have announced that a CNA would be considered a WMD. See Byard Q.
Clemmons and Gary D. Brown, Cybenvarfare: Ways, Warriors and Weapons of Mass Destruction, 79
MILITARY REVIEW, Sept-Oct. 1999, at 35-45, citing V.I. Tsymbal, “Kontseptsiya
“Informatsionnoy voyny” (Concept of Information Warfare), Speech given at the Russian-US
Conference on Evolving Post-Cold War National Security Issues Moscow (Sept. 12-14, 1995).

67. SROE, supra note 26, at A-4. See also DINSTEIN, supra note 29, at 202, discussing the
conditions precedent to the exercise ofself-defense and noting the addition ofimmediacy asa third
condition,

68. SROE, supra note 26, at A-6.

419


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.? 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.”! 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.11

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.”!2
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.!3 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." 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” oran “armed attack” would it not logically be subject to the
laws of “armed conflict,” i.e., humanitarian law? Ifso, all that need be done is to
determine what actions amount to a use of force or constitute an armed attack.15

189


Charles J. Dunlap

incitement to genocide may itself be a war crime,!02 Wilby’s assertions seem to
have merit, assuming the other prerequisites of the law of armed conflict were
met.

If cybertechniques can neutralize the facilities without the physical destruc-
tion conventional munitions cause, we should embrace netwar as a develop-
ment that could reduce the misery of war. Suppose, however, that the enemy
radio and television stations were transmitting not propaganda, per se, but accu-
rate information about US operations that nevertheless was eroding support
among our public or that of allied democracies?!°3 For example, in a report on
the attacks on Serb television stations, Patrick L. Sloyan observed that while
bombing stopped the “diet of lies fed Serb viewers,” it also served to “curb
transmission to the West of those disturbing ‘collateral damage’ pictures that
could erode public support for NATO’s escalating strikes in the Balkans.”10 If
addressing the latter concern were the sole aim—as opposed to, for example, the
limited notion of preserving operational security in a particular circum-
stance—would the attacks be justified? Probably not.

Censorship and exclusion of the press from military operations has long been tol-
erated in liberal democracies during wartime.!©5 Essentially, where there is a dem-
onstration that the information would present a clear and present danger to national
security, it could be suppressed.!°° That concept, however, would not seem to per-
mit the suppression of news reports—via cyberassault or other means—simply be-
cause the information conveyed would tend to demoralize public opinion in our
own country, or that of our allies. Democracy, I believe, has its price.

Concluding Observations

If this brief survey has succeeded, the reader will appreciate that the issues
raised by cyberterrorism are many and complex. At the present time, law and
policy carefully circumscribe the military’s role, and to date DoD has been care-
ful to stay within those limits.1°7 There are, however, calls for expanded respon-
sibility. Some suggest a relaxation of the policy that presumes at least initially that
a cyberattack is a civilian law enforcement problem, not a national security is-
sue.!08 Doing so, it is contended, would allow that application of the consider-
able resources of the military and intelligence communities that currently are
barred from use in most domestic cases involving US persons.109

To this end, one innovative proposal calls for a policy that presumes the digi-
tal “intruder is not a US person,” thus permitting “the full capabilities of the
United States’ investigative and intelligence assets” to be brought to bear.110
However, this reversal of the present presumption would apply only to attacks

365


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 concemed with the protection of the sovereign
territory of neutral nations than humanitarian aspects could be properly characterised as
“jntemnational 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 soonas the firstacts of violence were committed, even if
the armed struggle did not continue. Noris 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, The 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 Intemal Conflicts: The 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)... Atthe 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:

180


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-
jan 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 objectiveTM) 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).5! 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.5? This is also true ofan

106


Daniel T. Kuehl

While some feel that the US military’s interest in IW and IO isa reflection ofa
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 [W/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 ofits 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.*? 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


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 Intemational Law: Thoughts 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 criminal 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.LA.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 1971 BRITISH

230


V

International Law, Cybernetics,
and Cyberspace’

Anthony D’Amato

\ ( y pleasant assignment this morning is to talk about the future of com-
puter network attack under international law. Any prediction is diff-

cult to make, but the hardest thing of all to predict is the future. If 1 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 1907 and 1899. 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.


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.”* 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.® 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 bello, 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.” 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 /ex lata, rather than an exercise
in considering lex ferenda. While setting forth lex ferenda is an especially worthy
project as the nature of warfare evolves, 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
Jaw 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 of 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

188


Douglas S. Anderson and Christopher R. Dooley

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

293


Jeffrey H. Smith and Gordon N. Lederman

and the deployment of a space-based anti-ballistic missile capability. However,
despite the existence of certain limitations, the paper concludes that there is no
legal prohibition on developing and using non-nuclear weapons in space, whether
deployed in orbit or via flight from the earth’s surface.5 Seemingly, this conclu-
sion appears to open space to information operations.

Still, the DoD/GC Paper does not explore one possible way in which the
Outer Space Treaty might ban information operations utilizing satellites. While
the Outer Space Treaty prohibits “objects carrying nuclear weapons or any other
kinds of weapons of mass destruction . . . or stationing such weapons in outer
space, in any other manner,” it is unclear whether information operations fall
into the category of weapons of mass destruction. For example, a computer at-
tack against any national computer system of critical importance (e.g., key bank-
ing systems, key medical systems, computer systems controlling dams, oil
refineries, and other critical infrastructure installations) could wreak “mass de-
struction” in the sense of widespread loss of life and property.” To the extent that
a weapon is judged to be a weapon of mass destruction not because it falls within a
certain category of what is already accepted as a weapon of mass destruction,
namely, chemical, biological, radiological, and nuclear, but rather based on the
weapon’s effect, information operations could (if used skillfully) exact a fearful
toll on both life and property.*8 Of course, even if certain information operations
could constitute weapons of mass destruction, it is unclear what constitutes “car-
trying” or “station[ing]” such weapons on a satellite. Ifa satellite is used simply to
relay data from a computer in the aggressor country to a computer in the victim
country, it is unclear whether such a relay of information would be considered
“carrying” or “stationing” as defined by the Outer Space Treaty. However, one
could imagine a situation in which a particular program for information warfare is
stored in a satellite’s computer, waiting for the proper signal or timing for deliv-
ery to a ground-based target. In this case, the Outer Space Treaty could be inter-
preted as prohibiting the use of satellites for information warfare.

If the erratic development of US policy on anti-satellite weapons is any indi-
cation, policy regarding information operations in space may remain unsettled
for many years. For example, in the early 1980s, the Air Force developed an
anti-satellite missile designed to be fired from an F-15 fighter flying ata high alti-
tude. After the system was tested in 1985, Congress prohibited the appropriation
of funds for anti-satellite weapons to be tested against an object in orbit, leading
to the termination of the program in 1987. Congressional critics of the
anti-satellite weapons program argued that: (1) outer space should remain free
from warfare; (2) tests in space of anti-satellite weapons created space debris; (3)
testing of anti-satellite weapons might interfere with arms control negotiations;

381


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 techrical 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 & I-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, stipra 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
USS. 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.

319


Appendix

possible international legal restriction of information operations. On the one
hand, there is an obvious military interest in being able to interfere with an ad-
versary’s information systems, and in being able to protect one’s own. Used as an
instrument of military power, information operations capabilities have the sig-
nificant advantage that they minimize both collateral damage and friendly losses
of personnel and equipment. Their use may avoid unwanted escalation of a dis-
pute or conflict. They are relatively cheap and require much less in the way of
forward basing, deployment, and logistical support than do traditional weapons
and their delivery platforms.

On the other hand, as the nation that relies most heavily on advanced infor-
mation systems, the United States has the greatest vulnerability to attack. This
concern would seem to drive U.S. policymakers to consider the merits of inter-
national restrictions on information operations. If we could negotiate an effec-
tive international ban on certain types of information operations activities,
might signing such a treaty best serve our long-term national interests?

The subject of information operations is of course much more complex than
that of space control, since there are so many more information systems subject
to attack, so many more ways of attacking them, so many more potential players,
plus constant rapid changes in the relevant systems and technologies. As we have
learned in our internal U.S. policy deliberations, there are great difficulties in
even agreeing on definitions of what ought to be included in discussions of “in-
formation warfare” and “information operations.” In these circumstances, it
seems unlikely that there will be much enthusiasm anytime soon for negotiating
an international agreement that would significantly restrict information
operations.

521


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 Atlantic 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.

4


Brian T. O’Donnell and James C. Kraska

of dug-in defenses.*4 Inertia prevents change, and we cannot assume that mili-
tary commanders in the present day are immune from this phenomenon. Just as
in the examples cited above, bringing ROE for computer network attack from
the general and theoretical to the specific and concrete will help commanders
migrate to computer warfare.

The method by which CNA will accomplish its end result likewise needs to
be explained to commanders, and commanders need to be able to engage in pro-
fessional debate on the subject. The ROE relate to the underpinning interna-
tional and domestic authority for using CNA, the scope of the commander’s
authority within the context of the national and theater commander’s mission,
and the conditions, ifany, in which CNA is considered a lawful attack. One es-
pecially important consideration is the potential for collateral effects of CNA in
view of the law of armed conflict. How might CNA affect third countries or
neutral forces beyond the scope of the conflict? What might be the effect on civil
societies, civilian populations, businesses, and related public and private infra-
structure? What impact might CNA have on protected persons or locations,
such as sick and wounded personnel near the battle area or sites representing reli-
gious or cultural heritage? What about the effect on prisoners of war (POWs)
and other protected classes of personnel, such as medical or religious personnel?
Any anticipated or probable primary or secondary civilian injury or damage
must be reviewed to determine whether it is excessive or disproportionate to the
military advantage to be gained. Commanders are coming to view these issues
personally and with growing interest since they bear the ultimate responsibility
for the consequences of an attack. The trend toward creating universal multilat-
eral “war crimes” jurisdiction only serves to exacerbate many commanders’ un-
easiness toward command and personal liability.

The first step is for a commander to be able to understand the foreseeable
consequences of a CNA attack, including damage or disruption to non-military
systems. A review of the potential consequences within the ROE and LOAC
framework is essential to forming a decision on the use of CNA. In particular,
commanders must estimate the expected military benefit of CNA, and weigh
that calculation against the collateral costs of attack. Ideally, the commander
should be supported by an ROE cell that can present a menu of options. The
cell should include representatives from the operations, intelligence and
plans directorate, as well as a judge advocate. The cell should analyze ROE,
targeting and politico-military issues associated with CNA, and deliver recom-
mendations to the commander.

Commanders are rightly hesitant to employ unproven systems as one critical
component of a coordinated attack because if the CNA component fails, then.

403


“Weapons like to Lightning”

address the law of war? or the UN Charter,* as they are addressed elsewhere
in this “Blue Book.”>

First, this chapter provides a general overview of the development and con-
duct of information operations. Second, it briefly outlines the structure of inter-
national law, including the existence of treaties and the formation of customary
international law. Third, US obligations under international law regarding the
use of outer space and the impact of these obligations on the conduct ofinforma-
tion operations are examined. Fourth, we will explore treaties and international
agreements related to the international communications network and their im-
pact on US information operations. Fifth, a survey of possible treaties and other
US obligations under international law is offered as a checklist for military com-
manders and officials deciding whether to authorize a particular information op-
eration. The chapter concludes by offering some thoughts on the merits of an
international treaty concerning information operations. In sum, the interna-
tional legal obligations analyzed herein complicate US information operations
but present no insurmountable barriers to them.®

It must also be understood that any information operation may well be taken
under the extreme pressure of international conflict, without adequate time to
weigh all of the legal and political considerations that ought to be considered.
Consequently, careful thought must be given to the host of problems raised by
these emerging technologies. Moreover, the rate of change in the information
technology world means that the legal and political questions presented may be
dramatically altered by new technological developments.

In addition, information warfare presents an interplay between domestic and
international law not previously seen. For example, the authority of the United
States to detect, track, and respond to an information operation is driven as
much by the law governing electronic surveillance of US citizens as by interna-
tional law governing the use of force. Similarly, the questions of what legal au-
thority authorizes an agency to act—and which agency—are very difficult
questions. Although beyond the scope of this chapter, these questions must also
be answered well in advance of an international crisis.

Finally, it may be difficult to determine whether an information operation isa
hostile attack or a criminal act. This ambiguity raises a multitude of questions
about how the US should respond to such an event. Furthermore, a response
from the US may have unintended consequences, as decision-makers may
not be able to predict the collateral damage that may result. An information op-
eration against one nation’s infrastructure may have collateral damage, such as
destroying bank records, that is much more severe than was intended. Given the
interconnectivity of the Internet, a US information operation may blowback

376


Appendix

the allocation of various kinds of legal jurisdiction over the visiting forces. The
best known of these agreements is the 1951 Agreement Between the Parties to the
North Atlantic Treaty Regarding the Status of Their Forces (NATO SOFA). As of the
end of 1998 the United States was a party to 103 SOFAs, most of which follow
the general pattern of the NATO SOFA. SOFAs are necessary because of an
overlap of legal jurisdiction exercised by the sending and receiving states. The
receiving state has jurisdiction over persons and activities in its territory, while
the sending state has both the right and the duty to exercise control over its
armed forces, which is clearly a core sovereign function.

Since the full concurrent exercise of the normal jurisdiction of the sending
and receiving states is impractical, status of forces agreements allocate criminal
and civil courtjurisdiction between the sending and receiving states, and also ex-
empt the visiting force and its members from certain taxes, customs fees and pro-
cedures, immigration formalities, and most host nation licensing and inspection
requirements. Typically, an administrative claims procedure is established for
personal injuries and property damage caused by the visiting force. Another
common provision requires that the visiting force and its members “respect” the
host nation’s laws. (This requirement will be discussed in detail in the next sec-
tion of this paper). The NATO SOFA is implemented in most NATO countries
by separate, more detailed, bilateral supplementary agreements, and by numer-
ous other bilateral agreements on specific subjects including communications.

These agreements contain provisions that must be taken into account if U.S.
military forces intend to engage in information operations activities while pres-
ent in the territory of the receiving state.

* For example, many such agreements require that the United States notify the
host nation of any significant change in the capabilities or uses of installations
made available for the use of U.S. military forces. If U.S. authorities intend to
conduct information operations activities from such installations, a determina-
tion must be made as to whether the relevant agreements require notifying the
host nation, and perhaps even requesting its consent.

* Stationing agreements often provide that the visiting U.S. forces may install
and use various communications equipment, but they often provide as well that
such equipment must not interfere with host nation communications systems
and that it must be used in accordance with host nation laws and regulations. If
this equipment is to be used for information operations activities, it must be de-
termined whether the contemplated activities are consistent with these
obligations.

509


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. 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.* 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.> 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 (STARS) 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.® 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 isa
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.” 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

148


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 anew 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.

220


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.” Repeated efforts by the United States
resulted in Colombia passing a new law allowing for the extradition of its na-
tionals in 1997,7! 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,”4 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.7> 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 ofits
citizens to the United States for prosecution, two of them for drug trafficking.”6
Nonetheless, since that time, Mexico’s record, from the US perspective, has been
unsatisfactory,” 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.8° 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.8! 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. 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


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),4° citing as examples the release of floodwaters or the
spreading of fire across a border.‘! 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”? also would constitute force. It pushes the under-
lying principle too far. (It should be noted that this assessment is not intended asa
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, ifso, itis submitted, this would be because of the means em-
ployed, not the nature of the target. For example, if State were to use physical
but non-military means to achieve these results (e.g., dispatching intelligence

87


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

Offensive and defensive [W 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.? 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.> 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.* 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,

9


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.?
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.!° 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 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 ofsuch 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 ifthe 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).

Ifone is prepared to admit that non-military physical measures can constitute
force for purposes of Article 2(4), itis 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.3 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.

83


Computer Network Attack: Developing the Rules of Engagement

Innovation, Military Doctrine, and ROE

Limitations on the use of CNA may also fall victim to unnecessary restraint
due to several factors. First, the complex and typically highly classified nature of
CNA tools may not inspire confidence in commanders. They may be hesitant to
rely upon bare promises that certain CNA tools can accomplish a mission, such
as taking down an air defense site, when proven alternatives, such as air strikes or
cruise missiles, are available. Commanders likely will have had training and ex-
perience with kinetic methods, but may not understand or appreciate CNA.
During the 2000 Global War Game at the Naval War College, this dynamic was
repeated by commanders who tended to move away from more speculative in-
struments toward those which were more familiar. This tendency toward tradi-
tional and proven methods of warfare has been demonstrated in war games of
other services as well. Nevertheless, the war games also showed that US com-
manders were becoming more willing to adopt innovative methods to accom-
plish the mission, even when the methods lack historical record.

The military services are beginning to realize that to gain acceptance as a via-
ble weapon system, the secretive nature of the tools must be reduced to a more
accessible classified level so that commanders and their staffs and subordinate
commands can familiarize themselves with the systems. Consider the develop-
ment of the machine gun more than one hundred years ago. An American,
Richard J. Gatling, patented and demonstrated a reliable, multi-barreled re-
peating gun in 1862, but the Belgian-invented and French-developed
mitrailleuse was the first combat-tested machine gun.3! On the eve of the
Franco-Prussian war, the 11 mm mitrailleuse, recognized by the French army as
a technical breakthrough in firepower, was kept in such tight secrecy in peace-
time that very few French officers could discuss or develop doctrine or tactics for
its use on the battlefield. The weapon, which came as a complete surprise to
the Germans, had the potential to swing victory to the French. Instead, advan-
tage was lost because the French were caught up in marveling at the technical as-
pects of development without devising correspondingly effective doctrine and
tactics for the weapon.*9 Similarly, although the Germans, British, and French
were developing and fielding battle tanks during 1915-1916, they were ineffec-
tively and wastefully employed on the battlefield. It was not until a coherent
doctrine for their employment was developed—most notably by the innovative
British strategist Major J.F.C. Fuller—that the tank was accepted as a viable
weapon rather than a curiosity. On November 20, 1917, a spearhead of 476
British tanks penetrated German lines during the Battle of Cambrai, demon-
strating that the armored vehicles could achieve rapid and complete command

402


Proportionality, Cyberwar, and the Law of War

incidental loss of civilian life or injury to civilians is “clearly” excessive.!!
“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.!2 This may include self-conscious knowledge of
the breaching ofa 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.!3

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.”!4 Ar-
ticle 52 prescribes that “civilian objects shall not be the object of attack or of re-
prisals,” but notes, tautologically, that “[c]ivilian 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 ofnegotiated 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

226


Appendix

would immediately raise the issue of whether an active defense should be em-
ployed. This should not, of course, eliminate consideration of using an active
defense against attacks on systems not on such a “vital systems” list where the
circumstances justify such action. For example, a vigorous attack that threatens
to overwhelm an information system not on the “vital systems” list but that per-
forms an important national security function could be a more valid occasion to
use active defense measures than would be a trivial and easily defeated attack ona
designated “vital system.” A list of “vital systems” would serve primarily as an
alert mechanism that would bring about a prompt high-level evaluation of all
the circumstances.

In addition, it would be useful to create a process for determining when the
response to a computer intrusion should shift from the customary law enforce-
mentand counter-intelligence modes to a national defense mode. Such a process
should include (1) a statement of general criteria to be applied; (2) identification
of officials or agencies that will be involved in making the decision; and (3) pro-
cedures to be followed.

There are of course a variety of treaty obligations that will have to be consid-
ered before adopting an “active defense” against foreign computer network at-
tacks, and these will be discussed below. There are also a variety of domestic legal
concerns that will have to be addressed, and these will be discussed in the com-
panion assessment of domestic law issues in information operations.

E. Assessment.

It is far from clear the extent to which the world community will regard com-
puter network attacks as “armed attacks” or “uses of force,” and how the doc-
trines of self-defense and countermeasures will be applied to computer network
attacks, The outcome will probably depend more on the consequences of such
attacks than on their mechanisms. The most likely result is an acceptance that a
nation subjected to a state-sponsored computer network attack can lawfully re-
spond in kind, and that in some circumstances it may be justified in using tradi-
tional military means in self-defense. Unless the nations decide to negotiate a
treaty addressing computer network attacks, which seems unlikely anytime in
the near future, international law in this area will develop through the actions of
nations and through the positions the nations adopt publicly as events unfold.
USS. officials must be aware of the implications of their own actions and state-
ments in this formative period.

491


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 ofa 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


Computer Networks, Proportionality, and Military Operations

the law of armed conflict? 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,>! and that force has to be constrained to that re-
quired to accomplish the mission.*? 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,2+ precautions in attack,>> and the law of targeting.° 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.*” 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*%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, ora
conventional (kinetic) attack against a network target. These categories, while
overlapping and arbitrary, are intended to assist in focusing on the effects and
consequences ofa 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
thythm 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

156


John F. Murphy

6. 18 US Code §2331(c).

7, H.R. Rep. 99-783, 99th Cong,, Ist Sess. 88 (1986).

8. Id.

9. The reasons the Omnibus Diplomatic Security and Antiterrorism Act of 1986 dropped any
reference to terrorism asan element of the offense itselfare enlightening. These reasons have been
well summarized by Geoffrey Levitt, formally an attomey in the Office of the Legal Adviser,
Department of State, who worked on the act. Levite 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 ofa 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 clement 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. ... Wealso 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 Nonnative 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 in JOHN 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


Jeffrey H. Smith and Gordon N. Lederman

secondary benefit increased defensive capability against foreign attackers. See Interview with Jarod
Lanier, CNN (Jan. 9, 2000).

10. Winn Schwartau, An Introduction to Information Warfare, in WAR IN THE INFORMATION
AGE: NEW CHALLENGES FOR U.S. SECURITY 49 (Robert L. Pfaltzgraff, Jr. & Richard H. Shultz
Jr. eds., 1997).

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

12, Id, at I-11.

13. Id. at I-9.

14, See Washington Outlook, AVIATION WEEK AND SPACE TECHNOLOGY, Dec. 6, 1999, at27.

15, Robert Burns, Pentagon Cites Cyber Warfare Report, AP Online, Nov. 9, 1999.

16. David A. Fulghum, Telecom Links Provide Cyber-Attack Route, AVIATION WEEK AND
SPACE TECHNOLOGY, Nov. 8, 1999, at 81-83. While the Iraqi telecommunications network was
severely attacked during the Gulf War by Coalition air forces, Yugoslav telephone and Intemet
links apparently went relatively unscathed. Some analysts have postulated that this was a deliberate
move by NATO in order to maintain pathways for US military hackers to enter Yugoslav
computers. An after-action survey of bombing damage done by William Arkin, an independent
defense analyst, found that only 3 ofabout 30 Serbian telephone system nodes had been attacked by
NATO aircraft and that none of the three network control stations for cell phone usage had been
attacked, even though Yugoslav agents were reportedly phoning in with the times of NATO
aircraft departures from NATO bases. Arkin speculated that NATO forces deliberately did not
attack these communications nodes in order to maintain pathways for information operations. Id.

17. See Bradley Graham, Military Grappling with Rules for Cyber Warfare, THE WASHINGTON
POST, Nov. 8, 1999, at A1.

18, See Michael Evans, War Planners Wam of Digital Armageddon, THE TIMES OF LONDON,
Nov. 20, 1999, at 11.

19. See MND Calls for Establishment of High-level Defense Mechanism, Central News
Agency of Taiwan, Nov. 2, 1999.

20. Bringing the Intemet into the Military System is of Equal Significance with Land, Sea, and Air
Power, LIBERATION ARMY DAILY, Nov. 1999.

21. Robert Karniol, Briefing-Military Modemization in Asia, JANE'S DEFENSE WEEKLY, Nov.
24, 1999.

22. See DoD/GC Paper, supra note 2.

23. See id.

24, Id. This is even more true with the growing use of commercial satellite imagery. See Ann M.
Florini & Yahya Dehganzada, Commercial Satellite Imagery Comes of Age, ISSUES IN SCIENCE AND
‘TECHNOLOGY, Fall 1999, at 45-52.

25, DoD/GC Paper, supra note 2.

26, The Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610
U.N.T.S. 205 [hereinafter Outer Space Treaty].

27. Agreement on the Rescue of Astronauts, Return of Astronauts, and the Return of Objects
Launched into Outer Space, April 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 [hereinafter
Rescue and Return Agreement].

28. The Convention on International Liability for Damages Caused by Space Objects, March
29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention].

29. The Convention on the Registration of Objects Launched into Outer Space, Jan. 14, 1975,
28 U.S.T. 695, 1023 U.N.T.S. 15 [hereinafter Registration Convention].

30. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies,
opened for signature Dec. 18, 1979, 1363 U.N.T.S. 22. The Multilateral Prohibition of Military and

391


An Assessment of International Legal Issues

system or the data stored in it, when the system is critical to national security or
to essential national infrastructures, or when the intruder’s conduct or the con-
text of the activity clearly manifests a malicious intent.

Ifit is capable of doing so, in such circumstances the victim nation may be jus-
tified in launching a computer network attack in response, intended to disable
the equipment being used by the intruder. Disabling one computer may or may
not defeat a state-sponsored operation. It may, however, serve as a “shot across
the bow” warning of more serious consequences if the offending behavior con-
tinues. It is also an action unlikely to come to public attention unless one of the
two governments announces it, making it a potentially useful measure for con-
flict avoidance. Conducting a responsive computer network attack as a measure
of self-defense against foreign computer network attacks would have the major
advantage that it would minimize issues of proportionality, which would be
more likely to arise if traditional military force were used, such as firing a cruise
missile at the building from which a computer network attack is being con-
ducted. Either response would likely be analyzed on the basis of the traditional
criteria of necessity and proportionality.

If it is impractical to focus an attack on the equipment used in the provoca-
tion, any legitimate military target may be attacked. The primary value of being
able to demonstrate a nexus between the provocation and the response is to be
able to argue the likely therapeutic effect of the force used in self-defense. As a
practical matter, the next most attractive target after the equipment used in the
provocation may be the offending nation’s communications systems, or its mili-
tary or intelligence chain of command. The consequences ofa large-scale cam-
paign of computer network attacks might well justify a large-scale traditional
military response.

As stated above, the discussion up to this point has assumed we know who an
intruder is, and that we are confident in characterizing his intent. In practice, this
is seldom the case, at least in the early stages of responding to computer intru-
sions. The above legal analysis may change if the identity and location of an in-
truder is uncertain, or if his intent is unclear.

Identification of the originator of an attack has often been a difficult problem,
especially when the intruder has used a number of intermediate relay points,
when he has used an “anonymous bulletin board” whose function is to strip
away all information about the origin of messages it relays, or when he has used a
device that generates false origin information. Progress has been made, how-
ever, in solving the technical problem of identifying the originator of computer
messages, and reliable identification of the computer that originated a message
may soon be routinely available. Attribution may also be provided by

486


Vill

Self-Defense against Computer Network
Attack under International Law

Horace B. Robertson, Jr.

I: 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),! 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? 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


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 bello, 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

5


Index

Doherty, Joseph: 338
Donahue, Lieutenant General William J.: 360, 378
Drennan, Brigadier General Mike: 270

Due regard principle: 241, 385

Dugard, John: 335-36

Earth Resources Satellites: 271
Economic and political coercion as force: 80-82, 86-88, 89-92
Economic targets, legitimacy of 196-97, 222
Egypt: 45, 128-29
Eisenhower, Dwight: 280-81
Elections, subversion of: 364
“Eligible Receiver” (cyber attack exercise): 266-67
Emerging technologies and war: 396-97
Encryption: 342-43
Environmental damage, prohibition on: 199
Espionage
constraints on: 329
and customary international law: 67, 68, 101
and domestic law: 16, 329, 442
and international law: 16, 290-94, 311-17
and prevention of terrorist attacks: 325
and US citizens: 312, 314-15, 329
use of computer network exploitation for: 4, 16, 76, 79, 105, 154, 170, 172, 228, 290-92,
314-16, 326, 388, 422
viewed as a hostile act or demonstration of hostile intent: 16, 17, 329
in wartime: 172
Ethnic conflicts: 223
European Convention of Human Rights: 336
European Court of Human Rights: 196-97
European Extradition Convention: 333, 334
European Space Agency: 271
European Union: 334, 335-36, 337
Evans, Alona: 336
Exclusion zones: 243
Executive Orders
12333: 314
13010: 31, 43, 430
Exercise COBRA GOLD: 405
Exercise TANDEM THRUST 99: 406-07
“Expanding Joint Vision 2010: Concept for Joint Warfare”: 50
Extradition
barriers to: 332-37, 442
and hackers: 179

548


Douglas S. Anderson and Christopher R. Dooley

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
1990118 and Security Council Resolution 1264 (East Timor) in 1999119 have con-
tained this language. Coupled with the “all necessary means” language of a Secu-
tity 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 ofall nations clearly recognized by Arti-
cle 51 ofthe 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. !20 The ITU

283


Computer Network Attack: Developing the Rules of Engagement

Computer Network Attack

Computer network attack has emerged as one of the more promising tools
available to a military commander for mission accomplishment and self-defense.
It encompasses activities designed to “. . . disrupt, deny, degrade, or destroy in-
formation resident in computers and computer networks, or the computers and
networks themselves.”!4 While the legality of information warfare generally, or
CNA in particular, is very fact-dependent and open to considerable debate, it
has received at least some attention among international law scholars. Some
scholars maintain that a CNA constitutes a use of force, whereas other scholars
maintain that CNA is much more akin to adverse nonforceable influence.!5 This
debate is healthy and serves to shape the international law in the area.

Despite the importance of CNA, military and civilian commanders have
been unable to adequately explain it, or to achieve a consensus in designing
CNA ROE. Moreover, military staff judge advocates, civilian lawyers within
the national security and intelligence establishment, and academics are grappling
with how to best articulate the legal and policy underpinnings for computer net-
work attack decisions.

While theories and approaches that emerge from academia are useful to na-
tional decision-makers contending with these issues, they may be of limited
value to operational commanders, including those at the Navy fleet and battle
group levels. For the operational commanders, the legal and policy research sur-
rounding CNA often raises more questions than it answers. This results in leav-
ing those commanders who might integrate CNA into real-world operations
confused and frustrated. Rather than offering a theoretical legal model for CNA,
this chapter accepts the premise that CNA is quickly becoming a reality. There is
a broad range of capabilities to attack computer networks that are in various
stages of development, testing, and training, both in the United States and
abroad. There is evidence that they are already being employed in actual opera-
tions by a growing number of nations. Furthermore, as these capabilities become
better understood and easier to use, it is likely that the approval authority to em-
ploy them will gravitate downward in the chain of command to task force com-
manders. Eventually, proven methods of CNA could be authorized to
individual units and platforms. This chapter presents a question of first impres-
sion by examining the development of operational CNA ROE for military op-
erations, and it offers a practical approach to drafting CNA ROE. This pressing
issue of exactly how a commander begins to approach the legal aspects of devel-
oping and applying CNA in the real world is on the cusp of wide discussions.
There is a tremendous legal and policy gap—between rapidly advancing CNA

398


An Assessment of International Legal Issues

X. OBSERVATIONS

There seems to be little likelihood that the international legal system will soon
generate a coherent body of “information operations” law. The most useful ap-
proach to the international legal issues raised by information operations activities
will continue to be to break out the separate elements and circumstances of par-
ticular planned activities and then to make an informed judgment as to how ex-
isting international legal principles are likely to apply to them. In some areas,
such as the law of war, existing legal principles can be applied with considerable
confidence. In other areas, such the application of use of force principles to
adopting an “active defense,” it is much less clear where the international com-
munity will come out, and the result will probably depend more on the per-
ceived equities of the situations in which the issues first arise in practice than on
legal analysis. The growth of international law in these areas will be greatly influ-
enced by what decision-makers say and do at those critical moments.

There seems to be no particularly good reason for the United States to sup-
port negotiations for new treaty obligations in most of the areas of international
law that are directly relevant to information operations. The principal exception
is international criminal cooperation, where 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,” but there seems to be little concept at present
how such an agreement would operate or how it would reliably contribute value
to information assurance and critical infrastructure protection.

There are no “show-stoppers” in international law for information opera-
tions as now contemplated in the Department of Defense. There are, however,
many areas where legal uncertainties create significant risks, most of which can
be considerably reduced by prudent planning. Since so many of these potential
issues are relatively novel, and since the actions taken and public positions an-
nounced by nations will strongly influence the development of international law
in this area, the involvement of high-level policy officials in planning and exe-
cuting information operations is much more important at present than is the case
with more traditional military activities.

522


Daniel T. 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 poweras an enabler is an important, even vital aspect of what the Air
Force calls “information in war,”>! a critical foundation for information warfare,

49


Wired Warfare: Computer Network Attack and the Jus in Bello

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 ofa
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 ofan 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

205


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 DINSTEIN, supra note 1, at 183-184.

69. L. Stuesser, Active Defense: State Military Response to Intemational 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 test). 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 Anns, in 1 UNITED NATIONS LEGAL ORDER 247, 260 (O.
Schachter & C.C. Joyner eds., 1995).

74. SeeR. Ago, Addendum to Eighth Report on State Responsibility, [1980] Il (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 DINSTEIN, 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 Iragi 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, in2 UNITED NATIONS: LAW, POLICIES AND PRACTICE 1162,
1167 (R. Wolfrum ed., 1995).

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

81. The Gulf Waris 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 halfa year). Security Council Resolution 678 (1990), 29 INTERNATIONAL
LEGAL MATERIALS 1565, id. (1990).

$2. For the Kashmir incident, see 45 KEESING’S RECORD OF WORLD EVENTS 42997 (1999).

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

84. See T.D. Gill, The Forcible Protection, Affirmation and Exercise of Rights by States under
Contemporary Intemational 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


An Assessment of International Legal Issues

The ICJ’s predecessor, the Permanent Court of International Justice, in its
1928 Chorzow Factory Decision, declared that reparations were due to any nation
whose rights under international law were violated by another nation. This con-
cept is often referred to as the doctrine of state responsibility.

There is also a general recognition of the right of a nation whose rights under
international law have been violated to take countermeasures against the offend-
ing state, in circumstances where neither the provocation nor the response in-
volves the use ofarmed force. For example, an arbitral tribunal in 1978 ruled that
the United States was entitled to suspend French commercial air flights into Los
Angeles after the French had suspended U.S. commercial air flights into Paris.
Discussions of the doctrine of countermeasures generally distinguish between
countermeasures that would otherwise be violations of treaty obligations or of
general principles of international law (in effect, reprisals not involving the use of
armed force) and retorsions—actions that may be unfriendly or even damaging,
but which do not violate any international legal obligation. The use of counter-
measures is subject to the same requirements of necessity and proportionality as
apply to self-defense. Some examples of countermeasures that have been gener-
ally accepted as lawful are the suspension of diplomatic relations, trade and com-
munications embargoes, cutting off foreign aid, blocking assets belonging to the
other nation, and prohibiting travel to or from the other nation.

The international law doctrines of self-defense, reprisal, and countermeasures
all require that a nation invoking them do so with the intent of protecting itself
against further harm, either by directly blocking further hostile acts against itself
or by persuading its tormentor to cease and desist. The motive must be protec-
tion of the nation or its citizens or other national interests from further
harm—the satisfaction of extracting revenge, by itself, is not acceptable. These
doctrines also demand that a state do only what is necessary and proportional in
the circumstances.

In summary, it appears that one trend in international law is to provide some
kind of remedy for every violation of a nation’s rights under international law.
Some of these remedies are in the nature of self-help, such as armed self-defense,
the interruption of commercial or diplomatic relations, or public protest. Other
remedies may be sought from international institutions, such as an imposition of
coercive measures by the Security Council, or a declaratory judgment or an or-
der to make reparations from an international tribunal. The issue for the victim is
to choose the most effective available sanction. The issue for a nation contem-
plating an action that may be considered to violate the rights of another nation
under international law is to accurately predict what sanctions such action may
provoke.

482


Appendix

conflict, and the military imperative for the United States to be able to deny the
use of GPS to a military adversary. Similar issues are certain to arise in the future
in which information operations activities may create implications for the safety
of international civil aviation.

The Chicago Convention is rare among multilateral treaties in that it has a
specific provision concerning its application during armed conflict. Article 89
provides, “In case of war, the provisions of this Convention shall not affect the
freedom of action of any of the contracting States affected, whether as
belligerents or as neutrals. The same principle shall apply in the case of any con-
tracting State which declares a state of national emergency and notifies the fact to
the Council.” Upon reflection, however, this provision is unlikely be applied as
broadly as its language indicates. It seems clear that many provisions of the Con-
vention are inconsistent with a state of armed conflict. The most obvious is the
principle that aircraft not engaged in scheduled airline service have the right to
free passage into or through the airspace of other parties. Other provisions do
not appear to be incompatible with a state of armed conflict among some of the
parties. For example, the existence of a state of armed conflict among certain
parties should not be regarded as suspending the belligerents’ obligation to carry
out their combatant activities with due regard for the safety of civil aviation. Ac-
cordingly, Article 89 does not provide much help in deciding what provisions of
the Convention will remain applicable during an armed conflict, and resort will
still be required to the general principle that only those obligations that are in-
compatible with a state of armed conflict will be suspended, and only among the
belligerents.

E. Treaties on Diplomatic Relations.

The United States is a party to the 1961 Vienna Convention on Diplomatic Rela-
tions, a widely adhered to treaty establishing obligations among its parties con-
cerning the treatment of diplomatic personnel and premises. Among the
protections afforded a party’s diplomatic mission in the territory of another state
are the right to inviolability of the premises of the mission (Article 2); its “‘ar-
chives and documents” (Article 24); the private residences, papers, correspon-
dence, and property of diplomatic agents (Article 30); and diplomatic
communications (Article 27). The treaty further provides that the mission may
communicate with its government and other missions and consulates of its gov-
ernment by “all appropriate means, including diplomatic couriers and messages
in code or cipher. However, the mission may install and use a wireless transmit-
ter only with the consent of the receiving State.” Conversely, the treaty imposes

507


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.” 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 bello 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 bellum.

A CNA is often defined inadequately as disrupting, denying, degrading, or
destroying either information resident in a computer network or the network it-
self.3! 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 ofa 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.”5?

102


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
(LOAC). (The ensuing analysis cites the LOW and the LOAC interchangeably and also refers to
“war” and “armed conflict” interchangeably. More conventional analyses include, eg.,
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); IAN BROWNLIE, 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 DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE chs.1.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); 11 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: What Is Left of Traditional Law?, in
HUMANITARIAN LAW OF ARMED CONFLICT: CHALLENGES AHEAD 387 (Astrid J.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, The
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, The 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: The Shadow of the Lav 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?
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


John F. Murphy

action by the Security Council.1! Justification of a government sponsored ab-
duction ofa 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 1980,11 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.!!5 Testifying before Congress, Barr stated on behalf of the
Department of Justice:

[There 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
overa 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 Iaw.116

The validity of Mr. Barr’s proposition has been subject to sharp debate.!17 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.!18 °

In contrast, the US Government has made extraterritorial arrests in drug traf-
ficking cases.!19 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,!20 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.!21 Although
the majority opinion all but conceded by way of dicta that the abduction vio-
Jated norms of customary international law,!?2 the court did not address the issue

339


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,” 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.?6 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.?”

While both netwar and cyberwat® 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,?9

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

269


Computer Network Attacks and Self-Defense

International Court of Justice proclaimed, in the Corfis 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.”6 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.>” “[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 of Justice, in the Nicaragua case of 1986, explicitly
held that an armed attack encompasses not only action by regular armed forces
butalso the employment of “irregulars.”4° 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,*! whereas Judges
Schwebel and Jennings sharply dissented on this point.*? Be it as it may, there isa
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 Tadié case, that acts performed by mem-
bers ofa 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. Ter-
rorists can thus act quite autonomously and still stay de facto organs of the con-
trolling State.

104


Is It Time for a Treaty on Information Warfare?

involved in the issues to be addressed. This may be because the issues are limited
to one geographic area, or because only a few nations are capable of engaging in
the activities in question. Good examples of the latter group are strategic nuclear
arms control agreements and agreements to limit anti-ballistic and theater missile
defense systems. Agreements to promote better suppression of cybercrime and
cyberterrorism could be negotiated either multilaterally or bilaterally. The
results of the current efforts described above in the G-8, the Council of Europe,
and the Organization of American States are likely to be a combination of both,
with regional agreements arrived at on some issues, and bilateral approaches
taken to others. Negotiation ofa global multilateral convention on these issues is
unlikely until the problems of cybercrime and cyberterrorism are more broadly
experienced and more broadly understood.

C. General Assembly Resolutions. The United Nations General Assembly
has displayed great enthusiasm for passing resolutions on a broad range of sub-
jects calling on Member States to adhere to certain principles. When such reso-
lutions enjoy broad support they may persuasively influence the policies of
member governments and international institutions, but such resolutions do
not generally have the force of international law. On the other hand, there are
occasional General Assembly resolutions that are expressly intended to declare
certain principles of customary international law. When such resolutions are
supported by all or substantially all Members, they may be given great weight as
evidence of customary international law. An example of such a resolution rec-
ognized as “law-declarative” by the United States is the 1970 Declaration on
Principles of International Law Concerning Friendly Relations and Coopera-
tion among States in Accordance with the Charter of the United Nations.”
Judging from the lack of interest generated by the Russian initiatives on “infor-
mation security” in the General Assembly, it seems unlikely that there will be
enough support to pass any kind of resolution calling on Member States to ob-
serve any set of principles concerning information warfare. Given the novelty
of the international legal issues involved, it seems even more unlikely that the
General Assembly will pass a “law-declarative” resolution on information war-
fare in the next several decades.

D. “Codification” of Existing Customary International Law. Several
participants in the Newport conference recalled the work of the round-tables of
governmental and academic experts that met periodically from 1988 to 1994,
hosted by the International Institute of Humanitarian Law, which ultimately
produced the San Remo Manual on International Law Applicable to Armed Conflicts at

452


Douglas S. Anderson and Christopher R. Dooley

operations. They recognize, as does the US, its value in protecting national secu-
rity interests.? 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.!° 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.1! In addition, the DoD created the Joint Task Force - Computer
Network Defense!? (ITF-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.'4 Access to, and control of, outer
space are fundamental to our nation’s economic and military security.!5 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.!6 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.2° 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.?!

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

267


Appendix

the NATO SOFA provides, “It is the duty ofa force and its civilian component
and the members thereof as well as their dependents to respect the law of the re-
ceiving State ....” Similar language appears in most other SOFAs to which the
United States is a party. Considerable practice has accumulated concerning the
application of this obligation to “respect” the law of the receiving state. It has of-
ten been argued that the drafters could have said the visiting force must “com-
ply” with host nation law but instead chose the less definite term “respect.” The
product of almost fifty years of U.S. practice in implementing SOFAs world-
wide appears to be that U.S. visiting forces will generally observe the content of
host nation law, but are exempt from the law’s procedural requirements such as
licensing, inspection, and reporting. If U.S. visiting forces seek to avoid the ap-
plication of the substance ofa foreign law, they generally request the host nation
to grant them a specific exemption or at least to reach an understanding that a
particular host nation law will not be enforced against the visiting forces.

Ifa contemplated information operation activity appears to conflict with host
nation law, the commander concerned might choose to consult with host nation
officials in an effort to resolve the issue. If time or other circumstances do not
permit such consultations, the commander should carefully consider whether
the activities in question should be conducted by forces outside the territory of
the host nation concerned, and in a manner that would not make use of or affect
that nation’s communications systems. U.S. military and diplomatic authorities
should be able to manage host nation legal issues if we identify them early on and
carefully consider the available courses of action.

515


Neutrality and Information Warfare

and may invoke the Charter if the activity involves a violation of the neutral’s
territorial integrity. Ifa neutral may be required to mobilize forces to ensure ful-
fillment ofits responsibility to prevent belligerent forces from crossing into neu-
tral territory, and thus act in self-defense,>? 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.

Ifa 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.23 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.*4 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.5 Ifa neutral does not have the means, or the willingness to do so, an
aggrieved belligerent may take proportional action.*6 It would seem, however,
that if neutrals need not control their own stations, or acts of their nationals act-
ing in a private capacity,’ 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" 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.3? How-
ever, ifa 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.*° Ifa 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?

236


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.!77 Seeking action through the Security Council would likely prove fruit-
less, since Nation A isa close ally ofa 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 Jaw, 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.

295


XX

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

James P. Terry

Introduction

I: 1997, in an exercise emphasizing infrastructure security, the National Se-
curity Agency exposed the United States’ vulnerability to the disruption of
computer operations at our major military commands at the hands of a hostile
State or an organization with hostile intent.! A year earlier, US authorities had
detected the introduction of a program, called a “sniffer,” into computers at
NASA’s Goddard Space Flight Center, that permitted the perpetrator to down-
load a large volume of complex telemetry information transmitted from satel-
lites. The Deputy Attorney General reported that the “sniffer” had remained in
place for a significant period of time.? Of equal concern, an FBI report in 1999
detailed Chinese efforts to attack US Government information systems, includ-
ing the White House network. These actual and projected interstate intrusions
into Government computer networks once thought secure raise important
questions concerning what, ifany, rights in self-defense are triggered by such at-
tacks. More importantly, they pose the issue of how the right of self-defense, if


Index

Shultz, George: 425, 433-34
Sidorov, Vasily: 443
Signals intelligence: 8
Six Days War of 1967: 128
Sloyan, Patrick L.: 365
Sniffer software: 12, 27-28, 290-92
Soering v. United Kingdom: 336
“Solar Sunrise” (CNA): 266
Space. See Outer space.
Space-based weapons: 265-66, 380, 382
Space law: 265-98, 380-82, 446-47. See also Outer Space Treaty.
Spain: 271
Standing Rules of Engagement for US Forces (October 1, 1994): 61, 131, 137, 140, 150-51,
152, 153, 155-56, 400-401, 405-06, 414, 428-29. See also Rules of engagement; Joint Chiefs
of Staff.
State practice
and abductions: 338-39
and Antarctica: 280
and attacks on communications satellites: 295
and espionage: 291-92
lack of in the area of CNA: 453
and the meaning of armed attack: 191
and military uses of outer space: 280-81
States
obligations to suppress and prosecute perpetrators of CNA: 103-04
obligations to suppress terrorist acts against other States: 108
Status of Forces Agreements: 387-88
Statute of the International Court of Justice: 189, 234
Statute of the International Criminal Court: 178, 207, 225-26, 451
Statute of the International Criminal Tribunal for the former Yugoslavia: 225
Strategic Defense Initiative: 274
Sussmann, Michael: 341, 343
Swarming attacks: 404-05
Swedish National Defense College: 53
Switzerland: 178
Syria: 128-29
Tadic case: 104

Taiwan: 378-79, 447
Targeting
of combatants and military objectives: 195-97
and dual-use objects: 198-99, 205, 224-25, 226-27, 228, 288, 289-90, 295, 385-86, 412,
449-50

562


Contributors

to Armed Conflicts at Sea. Formerly, he served as Chairman of the Israel na-
tional branch of Amnesty International and was also a member of the Executive
Council of the American Society of International Law. Professor Dinstein is the
editor of the Israel Yearbook of Human Rights and has written extensively on
subjects relating to international law, human rights, and the law of armed
conflict.

Colonel Christopher R. Dooley, US Air Force, is presently Chief of the
International Law Division, Office of the Staff Judge Advocate, Headquarters
United States Air Forces in Europe (USAFE), Ramstein Air Base, Germany. He
previously served as the Chief of the Operations Law Branch, International and
Operations Law Division, Office of the Judge Advocate General, Headquarters
Air Force, Pentagon. In that position he was responsible for advising the Air Staff
and legal offices worldwide on international, operations, aviation, and space law.
He is a graduate of Bob Jones University, B.A., 1979, and the University of
South Carolina, J.D., 1982.

Ms. Louise Doswald-Beck is Secretary-General of the International Com-
mission of Jurists. She previously served as the Head of the Legal Division of the
International Committee of the Red Cross. A former lecturer in international
law at the University of London, she has published widely on many humanitar-
ian law and international law issues. Ms. Doswald-Beck was among a group of
international lawyers and naval experts that produced the San Remo Manual on
International Law Applicable to Armed Conflicts at Sea, for which she served as
editor.

Vice Admiral James H. Doyle, Jr., US Navy (Ret.), completed
thirty-seven years of service including assignments as Deputy Chief of Naval
Operations (Surface Warfare); Commander Third Fleet; Commander
Cruiser-Destroyer Group Twelve; Commander Attack Carrier Striking
Group Two; Chief, International Negotiations Division, Joint Staff; member
of the US delegation at the Third United Nations Conference on the Law of
the Sea; and Commanding Officer of four surface ships, including the first
nuclear-powered destroyer, USS BAINBRIDGE. He is a graduate of the Na-
tional Law Center, George Washington University, where he taught Interna-
tional Law of the Sea from 1982-89. Vice Admiral Doyle was among the group
of international lawyers and naval experts that produced the San Remo Manual
on International Law Applicable to Armed Conflicts at Sea. He is a member of
the Naval War College Advisory Board on Operational Law and Vice Chair-
man of the Strike, Land Attack and Air Defense Committee of the National
Defense Industrial Association.

533




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 preparatoires 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? and the Declaration on the Enhancement of the Effectiveness
of the Principle of Refraining from Threat or Use of Force in
International Relations,>° 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,>!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,>2 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.53 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

81


An Assessment of International Legal Issues

VII IMPLICATIONS OF ESPIONAGE LAW

A brief review of the treatment of espionage under international Jaw may be
instructive in predicting how the international community will react to infor-
mation operations, especially in those mission areas in which the same technical
capabilities may be used for both espionage and information operations, and also
in other areas where reasonably persuasive analogies present themselves.

A. Espionage under International Law.

For our present purposes, espionage may be defined as the covert collection
of intelligence about other nations, Espionage is a much narrower topic than
“intelligence,” much of which is collected via open source information, volun-
tary exchanges of information among nations, and technical means such as satel-
lite imagery and signals intelligence that are generally accepted as legal by the
international community. Roughly stated, covert methods of collecting intelli-
gence are in most cases designed to go undetected by their target, and if detected
they are designed to be unattributable to the sponsoring state. Nevertheless, dis-
covery, attribution, and public disclosure occur fairly often.

B. Espionage during Armed Conflict.

The treatment of spies during armed conflict is well established in the law of
war. A “spy” is defined in the law of war as any person who, when acting clan-
destinely or under false pretenses, obtains or endeavors to obtain information in
the area controlled by a belligerent, with the intention of communicating it toa
hostile party. A spy may be a military member ora civilian, and his or her citizen-
ship is irrelevant. Military personnel wearing their own uniforms are not consid-
ered to be spies, even if they engage in collecting intelligence behind enemy
lines. Only a person gathering intelligence while relying on protected civilian
status or while wearing an enemy uniform is considered to be a spy under the law
of war. Accordingly, information operations during an armed conflict will not
raise any issue of spying under the Jaw of war unless they involve the presence of
individuals inside enemy-controlled territory who (1) are engaged in collecting
information with the intent of communicating it to a hostile party, and (2) are
wearing civilian clothing or enemy uniforms. It seems highly unlikely that the
notions of “electronic presence” or “virtual presence” will ever find their way
into the law of war concept of spying, for two reasons: (1) Ifan individual is not
physically behind enemy lines he or she is not subject to capture during the

516


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.°

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 ofa 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 ofa 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
itis for our own good, yet we're the criminal... . Yes, lama 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.®

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


Computer Network Attack: Developing the Rules of Engagement

With the principles of LOAC in mind, a commander must also possess addi-
tional information prior to requesting permission for, or directing, a CNA. Asa
practical matter, the commander must know the target—is ita network, link, fa-
cility or person? He or she must also understand the effect—both military and
cascading or collateral—the CNA will cause.

What is the Target?

Determining the target, and evaluating its lawfulness, will continue to be a fo-
cus of rules of engagement, and attacks against information systems are no excep-
tion. Whether the target is purely military or civilian, or nominally civilian but
intertwined with military purposes or uses (dual-use) is central to this analysis. In
the computer network attack realm, achieving “Supervisory Control and Data
Acquisition” (SCADA) over a target is often the objective. SCADA is the com-
puter control of a power system, railroad or sewer system, or fresh water system.
Over the last twenty years, the US military has relied more on targeting dual-use
infrastructure systems. As this infrastructure becomes modemized and networked
in most nations throughout the world, reaching system SCADA on a variety of lu-
crative targets is quickly becoming a milestone in any military operation.59 At least
one proponent has argued that the targeting of electric power distribution and ci-
vilian bridges is a violation of Additional Protocol I. The Basic Rule of Article
48 states, “In order to ensure respect for and protection of the civilian population
and civilian objects, the 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 objec-
tives.” Article 51 (4) states, “Indiscriminate attacks are prohibited.”®! Article 51 (2)
states: “The civilian population as such as well as individual civilians shall not be
the object of attacks. Acts or threats of violence, the primary purpose of which is
to spread terror among the civilian population, are prohibited.”62

Cascading Effects

Other than the desired military impact, what other probable and possible
effects—cascading effects—can the CNA cause? Once such effects are assessed,
the principle of proportionality must be examined. This would require an
analysis of whether civilian systems will be affected. Is any damage excessive in
light of the definite military advantage anticipated? What is the threshold of al-
lowable civilian damage? Are there alternative means available to accomplish
the mission?

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Yoram Dinstein.

Nicaragua case.°? 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.%! This dictum has been cogently challenged in a dis-
sent by Judge Jennings, but it may have some merit against the background ofa
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 nota 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). 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.”®> 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, “[r]elatively 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.9” Judge Schwebel dissented, holding that the reporting

113


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].3!

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 ofits people.>2 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.35 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 Staff General Michael E. Ryan gives
an excellent example of the practical use ofspace 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.59 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

270


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. Ina 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.4>

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.” 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 ofits 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


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


Computer Network Attack: Developing the Rules of Engagement

engaged in deliberate planning, the Director of Strategic Plans and Policy (J5) is
the central player. These directorates are closely assisted by the judge advocate,
who serves as a facilitator to ensure that the principles of international and do-
mestic law are honored.*° Toward this end, subject matter experts are critical to
forming meaningful ROE. Generally, the Director of Intelligence (J2) and the
Director of Command, Control, Communications and Computers (J6) are key
advisors regarding CNA capabilities and limitations.

Toward a Results-Based Model

During the drafting process, a “results-based” approach to ROE should be
given preference over broad grants of authority to engage in CNA. Results-
based ROE tie CNA into a specific mission type, along with the expected, as
well as the desired, political or military effect. Using an air defense unit as an ex-
ample, CNA ROE might be written to authorize CNA to disable an air defense
site for a specific period of time in order to accomplish one part ofan overall mis-
sion. This could prove extremely useful when the alternative of kinetic attack
might release dangerous forces, physical destruction of the site is not required, or
physical destruction might cause excessive collateral damage or adverse political
consequences. CNA, by contrast relies upon a data stream to execute an attack,
such as sending an attacking code to an air defense system computer, causing the
power supply to short out. This is in contrast to using the electromagnetic spec-
trum, such as an electromagnetic pulse, that relies upon kinetic energy to obtain
a similar result.41

Many commanders are concerned about the delay required to obtain supple-
mental ROE approval, especially if the requested rules require NCA approval.#2
During joint and combined exercises in the Western Pacific, scenario events typi-
cally overtook requests for supplemental ROE, as superseding events made the
supplemental request irrelevant by unfolding scenario events. The same dynamic
occurs in the real world, and the introduction of computer network attack ROE
can only decelerate the process. One method that might speed this process along
has been to request supplemental rules early in a scenario, delegating authorization
to approve the ROE to a level closer to the commander ultimately charged with
its use. For example, a combatant regional CINC might be delegated authority in
advance for actions that would normally require NCA approval. Additionally, the
supplemental ROE might be authorized pending occurrence of a certain set of
events or tripwires. This type of thinking was evident in discussions with Austra-
lian operators and attomeys during Exercise TANDEM THRUST 99. In the
Australian Defence Forces, this concept is called “dormant ROE,” and it may

406