THE INTERNATIONAL 

LEGAL IMPLICATIONS OF 

INFORMATION WARFARE 

Richard W. Aldrich 

INSS Occasional Paper 9 

Information Warfare Series 

April 1996 

USAF Institute for National Security Studies 

US Air Force Academy, Colorado 
ii
iii

The views expressed in this report are those of the author and do not 

necessarily reflect the official policy or position of the Department of the Air 

Force, the Department of Defense or the US Government. This report is 

approved for public release by SAF/PAS; distribution is unlimited. 

******** 

ABOUT THE AUTHOR: Richard W. Aldrich is an Air Force Staff Judge 

Advocate and Associate Professor of Law at the US Air Force Academy. He 

received a BS in computer science from the Air Force Academy in 1981 and a 

JD from the UCLA School of Law in 1986. 

******** 

This paper is the result of research conducted under the auspices of an INSS 

research grant in the summer of 1995. 

******** 

Comments pertaining to this report are invited and should be forwarded to: 

Director, Institute for National Security Studies, HQ USAFA/DFE, 2354 

Fairchild Drive, Suite 5D33, US Air Force Academy, Colorado Springs, CO 

80840, 719-472-2717. 
iv
v

TABLE OF CONTENTS 

Foreword vii 

Executive Summary ix 

I. Introduction 1 

II. Definitions 3 

III. The Law of Armed Conflict 6 

A. Applicability 6 

1. Armed Conflict 6 

2. Cyberspace vs. Land, Sea, Air and Space 7 

B. Basic Principles 8 

1. Principle of Military Necessity 9 

2. Principle of Humanity 12 

3. Principle of Chivalry 15 

IV. Treaties 18 

A. The United Nations Charter 18 

B. The Outer Space Treaty 20 

C. The Moon Treaty 21 

D. The Liability Convention 24 

E. The International Telecommunication Convention 24 

F. Guidelines for the Security of Information Systems 25 

V. Conclusion 25 

Endnotes 27 
vi

FOREWORD 

We are pleased to publish this ninth volume in the Occasional Paper

series of the US Air Force Institute for National Security Studies (INSS). This 

monograph represents the results of research conducted during fiscal year 

1995 under the sponsorship of a grant from INSS. 

This paper examines the international legal implications of 

information warfare and its basic underlying concepts. As the author points 

out, we have entered the information age. The US military is the most 

information dependent force in the world and also the most networked. Add to 

that the United States' dependence on computers and computer networks for 

banking, communication, stock exchanges, transportation, air traffic control, 

and it is obvious that, in the words of the Director of the National Security 

Agency, “we've become the most vulnerable nation on earth.” 

Infowar, the ability to destroy or disrupt these networks, has become 

a major security challenge. Individuals, terrorists, or foreign countries capable 

of penetrating these infosystems could wreak havoc with our national defense 

and civilian infrastructures. How does the Law of War and other international 

law limit this new form of warfare? That question provides the focus for this 

paper, which raises many issues with no clear legal precedent. In this new 

arena, the author advocates applying existing law to fill gaps as they are 

identified, while trying to develop and adapt the law to the changed 

environment. 

About the Institute 

INSS is co-sponsored by the National Security Negotiations Division, 

Plans and Operations Directorate, Headquarters US Air Force (USAF/XOXI) 

and the Dean of the Faculty, US Air Force Academy. The mission of the 

Institute is “to promote national security research for the Department of 
vii

Defense within the military academic community, and to support the Air Force 

national security education program.” Its primary purpose is to promote 

research in fields of interest to our organizational sponsors: arms control, 

proliferation, national security, regional studies, the revolution in military 

affairs, information warfare, and environmental security. INSS coordinates 

and focuses outside thinking in various disciplines and across services to 

develop new ideas for USAF policy making. The Institute develops topics, 

selects researchers from within the military academic community, and 

administers sponsored research. We also host conferences and workshops 

which facilitate the dissemination of information to a wide range of private 

and government organizations. INSS is in its fourth year of providing 

valuable, costeffective research to meet the needs of the Air Staff and our 

other sponsors. 

We appreciate your continued interest in INSS and its research 

products. 

JEFFREY A. LARSEN, Lt Colonel, USAF 

Director, Institute for National Security Studies 
viii

EXECUTIVE SUMMARY 

“Information Warfare” is a fairly new concept. As such, its definition 

is still evolving, but the Air Force has described it as encompassing “any 

action to deny, exploit, corrupt or destroy the enemy's information and its 

functions; protecting ourselves against those actions; and exploiting our own 

military information functions.” The breadth of this definition spans the 

spectrum from primitive propaganda and deception actions to high tech viruses 

and morphing techniques. It is a concept which can be employed offensively, 

defensively, and in peacetime. 

Because of potential wartime applications, the question arises as to 

what the legal implication of information warfare are. This paper focuses only 

on the international legal implications, analyzing the potential applicability of 

the Law of Armed Conflict, or the Law of War, and several specific 

international treaties. 

One initial hurdle posed by the breadth and uniqueness of certain 

aspects of information warfare is the question of what constitutes an armed 

attack in the information age? The question is important for the purpose of 

determining what constitutes an unlawful aggressive act allowing for the 

lawful employment of defensive or counteroffensive force. The answer is less 

than clear, but appears to revolve around the threat the action poses to a 

government's authority over its people. 

The Law of Armed Conflict analysis discusses the three basic 

principles central to the LOAC: the principle of military necessity, the 

principle of humanity, and the principle of chivalry. The principle of military 

necessity stipulates that targets must have a military goal and be consistent 

with the laws of war. The principle of humanity deals with proportionality in 

the type and degree of force used. The principle of chivalry addresses the use 

of trickery-both permissible ruses and impermissible perfidy or treachery. 
ix

None of the principles presents any absolute bar to the use of information 

warfare concepts, tactics or weapons, though each may limit certain 

implementations of the concept. Notably, the principle of chivalry may restrict 

the use of trickery, electronic or otherwise, which abuses a protected status, 

such as that afforded surrendering troops, Red Cross medical services, and the 

like. 

Several international treaties may also constrain potential information 

warfare activities. Most prominent in this area are treaties dealing with outer 

space. Several treaties place limitations on the use of certain satellites to 

“peaceful purposes,” a catch-phrase which has been variously interpreted to 

mean “non-military” at one end or “nonaggressive” at the other. Additionally, 

the Treaty on Neutrals appears to preclude neutrals from interfering with the 

use of telecommunications lines which cross their countries. In an age of 

packet switching and fiber optic cables, such a task would be nearly 

impossible in many cases anyway, at least without taking down the neutral's 

own ability to use its communications equipment. 

Information warfare is a concept whose time has already come. The 

number, type, and scope of information operations seems destined to become 

more omnipresent. As such it is incumbent that American leaders be cognizant 

of the existing legal strictures to ensure that such activities conform to the law. 

This will help preserve the humanity of war and America's moral leadership. 
1

The International Legal Implications 

of Information Warfare 

Because exploiting [information systems] will readily 

cross international borders, we must be cognizant of 

what the law allows and will not allow. We must have 

good legal advice as we get into this. 

-- General Ronald R. Fogelman, Chief of Staff, US Air 

Force1

 

I. Introduction 

In the above quote, General Fogelman was speaking of 

“Information Warfare,” the type of warfare believed by many to be the 

means by which the next “big” war will be fought and more importantly, 

the means by which future wars will be won. The term itself is enigmatic, 

embracing concepts as old as war itself and as new as the latest technology. 

The recent meteoric rise in prominence of the concept is inextricably 

linked to the dramatic advances in communications technology and 

information systems, specifically the computer. 

Some scientists suggest that the most important invention 

is not “wireless communication, flying, the internal 

combustion engine or the atomic bomb but the digital 

computer;” for, while the others may be a threat to our 

environment, our privacy or our lives, none of them can 

threaten our image of ourselves in the way the computer 

can.2

 

Nor may any of them affect how future wars are fought as much as the 

networked digital computer will. 

Futurists Alvin and Heidi Toffler, authors of The Third Wave and 

War and AntiWar, claim we have entered a new era -- an information age. 
2

They refer to this era as the Third Wave to differentiate it from the agrarian 

and industrial periods. In the Third Wave, information ascends to become 

the most important resource and, as such, becomes a significant means of 

both preventing and/or limiting future wars as well as winning wars. 

Many scoff at the idea as so much hype. Perhaps so, but it is 

important to realize that 

the American military is the most informationdependent force in the world. It uses computers to help 

design weapons, guide missiles, pay soldiers, manage 

medical supplies, write memos, control radio networks, 

train tank crews, mobilize reservists, issue press 

releases, find spare parts and even suggest tactics to 

combat commanders.3

 

The American military is also the most networked force in the world, a 

combination which, absent adequate defenses, makes the American 

military extremely vulnerable to information attacks. The country's heavy 

civilian reliance on computers in communications, air traffic control, 

banking and the stock exchanges, has prompted National Security Agency 

director, Vice Admiral John McConnell, to comment that, “We're more 

vulnerable than any nation on earth.”4

 The Joint Security Commission has 

characterized American vulnerability to infowar as “the major security 

challenge of this decade and possibly the next century.”5

 Individuals, 

terrorist groups or foreign countries capable of penetrating the military's 

information systems could wreak havoc with our national defense. 

Some say the war has already begun. Robert Ayers, of the 

Defense Information Systems Agency (DISA), has concluded that 

Department of Defense computers were broken into by unknown persons 

in excess of 300,000 times in 1994. Indeed, DISA itself tried to test the 

military's vulnerabilities by hacking into 8,932 DOD computers. DISA 

successfully gained control of 88% of them, using only “front door” 

attacks. Even more discouraging is the fact that only 4% of those hacked 
3

into even knew they had been victimized, and shockingly only 0.2% 

reported it.6

 

How, then, does the law of war and other international law limit 

this new form of warfare, if at all? To answer that question, this paper will 

first explore the definition of the term “information warfare,” then discuss 

the appropriateness of applying the laws of war to information warfare 

techniques. Finally, it will turn to international treaties to determine how 

they may impact this new form of warfare. 

II. Definitions 

How the laws of war and international treaties proscribe the scope 

and use of information warfare hinges largely on how it is defined. 

Unfortunately, the definitions are diverse. Indeed, there are even various 

terms used in lieu of or in addition to information warfare including: 

“infowar,” “information operations,” “netwar,” “command and control 

counterwar (C2W),” “Third Wave War,” “knowledge war” and 

“cyberwar.”7

 

The term “information-based warfare” is sometimes used to 

denote a subset of information warfare, but can also describe an earlier, 

more narrow concept of infowar: 

Information-based warfare is an approach to armed 

conflict focusing on the management and use of 

information in all its forms and at all levels to achieve a 

decisive military advantage especially in the joint and 

combined environment. Information-based warfare is 

both offensive and defensive in nature-ranging from 

measures that prohibit the enemy from exploiting 

information to corresponding measures to assure the 

integrity, availability, and interoperability of friendly 

information assets.8

 
4

Some also distinguish “information age warfare” from 

information warfare. The former “uses information technology as a tool to 

impart . . . combat operations with unprecedented economies of time and 

force,”9

 while the latter “views information itself as a separate realm, 

potent weapon and lucrative target.”10 

“Information assurance” is most often used by non-military 

individuals and organizations to denote only the defensive aspect of 

information warfare, though many in the corporate community also employ 

the term “information warfare” for that purpose. 

Winn Schwartau, author of the book Information Warfare: Chaos 

on the Electronic Superhighway, defines information warfare as “an 

electronic conflict in which information is a strategic asset worthy of 

conquest or destruction.”11 He also defines three classes of information 

warfare: Class 1 is personal information warfare, Class 2 is corporate 

information warfare, and Class 3 is global information warfare. 

The Computer Security Institute defines information 

warfare as, [d]istinct from “computer crime” because it 

implies an aggressive act on the part of one adversarywhether an individual, a competing organization or a 

rival government-against another in an ongoing struggle 

for hegemony in the marketplace or the political arena.12

 It goes on to distinguish the term from “information gathering” 

by noting that the former carries with it the threat of interrupted 

operations and destroyed assets in addition to the loss of secrets 

normally associated with another's information gathering.13 

According to The Washington Post, “The Pentagon formally 

defines infowar as the effort to seize control of electronic information 

systems during a conflict.”14 However, this assessment of the Pentagon's 

definition is far too narrow. Indeed some in the Pentagon have defined 
5

information warfare so broadly that it encompasses virtually all aspects of 

warfare activity. In a publication recently released by the Air Force, 

Cornerstones of Information Warfare, infowar is defined as “any action to 

deny, exploit, corrupt or destroy the enemy's information and its functions; 

protecting ourselves against those actions; and exploiting our own military 

information functions.”15 Under this definition, information warfare is 

dependent only on the nature of the action, not the means by which it is 

accomplished. Thus, the conventional bombing of a computer center is 

information warfare, but would not be under definitions offered by Mr. 

Schwartau and others. 

The National Defense University defines infowar as “the use of 

information and information systems as weapons in a conflict where 

information and information systems are the targets.” This would 

presumably include the wartime use of propaganda and psychological 

operations (PSYOPS). 

However the term is defined, its very name may make matters 

more complicated from a legal perspective. Under the broadest definitions, 

information warfare could be carried out both during peacetime and in 

conflict. Calling a peacetime activity “information warfare” may 

unnecessarily suggest the applicability of the laws of war or the 

appropriateness of defensive measures. It was perhaps for this reason the 

United States Army has referred to the concept instead as “information 

operations.” In spite of this, the term “information warfare” seems already 

too entrenched in the American vocabulary to change anytime soon. And 

obviously the vocabulary does not drive the law. Calling a pencil a nuclear 

weapon, for instance, does not make it one, but it would certainly introduce 

unnecessary confusion if a foreign country learned that the Pentagon was 

purchasing one million of these new “nuclear weapons.” 
6

III. The Law of Armed Conflict 

Despite the lack of a universally agreed upon definition, this paper 

will concentrate on that aspect of information warfare dealing with the use 

of information systems for offensive or defensive purposes. Conventional 

attacks against information systems can largely be dealt with using 

traditional law of armed conflict constructs to assess military necessity, 

proportionality, collateral damage and the like. It is the use of nontraditional “information weapons” which raises the most interesting legal 

questions and which will be the focus of this paper. 

A. Applicability 

1. Armed Conflict 

The Law of Armed Conflict is also referred to as the Law of War, 

though the former term seems more popular as nation states today rarely 

declare war, but frequently involve themselves in armed conflicts. The 

Law of Armed Conflict necessarily applies whenever two nation states are 

involved in an armed conflict.16 But what is “armed conflict?” The 

expression “international armed conflict” is not defined in the Geneva 

Conventions or elsewhere in international law, but several commentators 

would consider that, at a minimum, it would apply “wherever regular 

armed forces engage the regular armed forces of a foreign state or enter the 

territory of a foreign state without permission.”17 “Engage” conveys a 

physical confrontation, and “enter[ing] the territory of a foreign state” 

denotes a physical entry, thus in both cases skirting the concerns raised by 

information attacks. Some may find it less problematic characterizing an 

information attack as force if there is a physical manifestation, such as an 
7

explosion. But this comprises only a fraction of the potential kinds of 

information attacks. “Armed conflict,” as presently understood, seems far 

less likely to be applied to the simple manipulation of bits inside a 

computer, though this may soon change. Already the nefarious 

manipulation of bits could, in some cases, cause significantly more harm 

than a bomb. 

“Armed conflict” under Article 2 of the Geneva Conventions was 

specifically chosen over the term “war” because of its broader scope. 

However, its scope in 1949 could hardly have foreseen today's potential 

information warfare conflicts. The commentator Jean C. Pictet concluded 

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, even if one of the parties denies the existence of a 

state of war.”18 This only shifts the question to what constitutes 

“intervention,” but again the defining criteria seems to be one of physical 

confrontation. If an information attack does not fit the definition of an 

“armed conflict,” then many, if not all of the laws of armed conflict are not 

even applicable. 

2. Cyberspace vs. Land, Sea, Air and Space 

The Geneva and Hague Conventions both deal with the issues of 

laws of war “on land” or “at sea.” Even the 1977 protocols to update the 

Geneva Conventions continued this connection to the land or sea, while 

other law of war treaties dealt with the air and space. This division worked 

well for the agrarian and industrial ages, but falls far short in proscribing 

conduct in the information age. Information warfare takes place in what 

has come to be known as cyberspace, an ethereal place which does not 

neatly fit into the land, sea, air, space dichotomy.19 Information warfare 
8

involves conduct and effects which transcend national boundaries and 

render such distinctions superfluous. 

Nor do actions in cyberspace come cloaked in military garb. The 

information attack against a military computer could be the work of a 

curious teenager down the street, the work of terrorists in a nearby country, 

or the work of a belligerent government half way around the world. One 

cannot always trace the source of the action. And even when the action can 

be traced back, it may lead only to an anonymous remailer. If an ICBM 

were launched from Russia, it would be a fairly clear signal of the start of 

an armed conflict. However, even if an information attack could be traced 

to Russia, it is unclear whether a teen, a terrorist group, or agents of the 

government are at the keyboard. Some may say that this is no different 

from the anonymous terrorist attacks occasionally suffered by military 

personnel and installations. The killing of American soldiers in German 

discos is a prominent example. In such a case, the United States merely 

relied on other sources of intelligence to fill in the ambiguities. In the 

German disco case, intelligence sources were able to sufficiently point the 

finger at Libya to justify military air strikes against it. Perhaps the same 

can be done in the area of information attacks, though it is interesting to 

note that the State Department's Anti-Terrorism unit narrowly defines 

terrorism to be only politically motivated physical attacks. Thus, 

information attacks would not generally even fit within the definition of 

terrorism. 

B. Basic Principles 

There are three basic principles central to the laws of armed 

conflict (LOAC) and it is instructive to analyze the applicability of LOAC 

to information warfare by analyzing these underlying tenets. 
9

1. Principle of Military Necessity 

The first principle of LOAC is military necessity. Briefly, it 

“permits the application of only that degree of regulated force, not 

otherwise prohibited by the laws of war, required for the partial or 

complete submission of the enemy with the least expenditure of life, time 

and physical resources.”20 Professor Francis Leiber defines it as, “Those 

measures which are indispensable for securing the ends of war and which 

are lawful according to the modern law and usages of war.”21 

This first principle would seem to pose few hurdles for 

information warfare. However, the exact scope of term “regulated force” is 

somewhat nebulous and could pose some problems for the employment of 

certain types of computer viruses. Viruses are often listed among the 

available “information weapons” and include worms, Trojan horses and 

logic bombs. These are all programs or sections of computer code designed 

to wreak havoc on a recipient's computer. They can be designed to trigger 

upon the occurrence of a certain event or to activate randomly. Randomly 

triggered viruses, worms, Trojan horses and logic bombs may not properly 

fit the definition of the use of regulated force. 

The Principle of Military Necessity permits anything that is not 

otherwise prohibited by the laws of war. This definition currently works in 

the favor of information war advocates, since most of the laws of war were 

set down prior to any conceptualization of information weaponry and 

information warfare tactics. While the relative void does little to impede 

this new form of war, some international treaties may provide barriers. 

The stipulation that defeat of the enemy be accomplished with the 

least expenditure of life, time and physical resources also favors 

information warfare, since it is largely viewed as a bloodless type of 

warfare. Information attacks may also take little time, potentially traveling 

at the speed of light. And because it is generally aimed at disrupting 
10

information systems, information warfare attacks are less likely to result in 

the loss of physical resources or lives, though some attacks are aimed at 

destroying internal electronics. 

While not much has been published on how information warfare 

will be conducted, Col Owen E. Jensen recently wrote an article “for those 

seeking a few fundamental principles to guide them in applying 

information warfare to specific scenarios.”22 In his article he emphasizes 

the importance of the Principle of Decapitation: 

Cut or deny all the enemy's information-transfer mediatelephone, radio frequencies (RF), cable, and other means 

of transmission. Sever the nervous system. Deny, disrupt, 

degrade, or destroy every transmission. Stop all “gray 

system” access. Close off to the enemy all third-party 

communications satellites (COMSAT), whether they 

belong to international consortia or to commercial 

enterprises or are assets of uninvolved nations.23 

The all-inclusive nature of this principle raises several legal issues: (1) its 

scope probably exceeds the bounds of military necessity, (2) it probably 

violates the INTELSAT and INMARSAT treaties, and (3) it probably 

violates the treaty concerning neutrals. Only the first issue will be 

addressed here. The latter two will be addressed in the appropriate sections 

below. 

Again, the Principle of Military Necessity allows only the 

application of that degree of regulated force required for the partial or 

complete submission of the enemy with the least expenditure of life, time 

and physical resources. Arguably, denying all information-transfer media 

and disrupting or destroying every transmission goes beyond a military 

objective by incapacitating the entire civilian populace as well. Taking out 

all information-transfer media would bring down a country's stock market, 

banking system, air traffic control, emergency dispatches and more. This 

would almost certainly result in the loss of civilian lives, and may well be 
11

deemed disproportionate to the military objective. The difficulty in the 

information age, however, comes in where to draw the line. 

In the United States, for example, over 95% of military 

communications traverse civilian lines. The use of fiber optics and packet 

switching makes taking out only military communications virtually 

impossible. Nevertheless, incapacitating the entire civilian system would 

seem too blunt an approach under the law of armed conflict. Taking out 

military communications centers, military radio frequencies, and 

manipulating military messages to create confusion and render even good 

messages suspect would be a far more legally defensible position. 

However, if the enemy responded by targeting civilian communications 

centers and civilian frequencies, a response in kind would be more clearly 

legal, even with the consequent collateral effects to civilians. 

The Air Force's Cornerstones of Information Warfare notes a 

troubling asymmetry between offensive and defensive actions under 

information warfare: 

The military may, consistent with the law of armed conflict, 

attack any militarily significant target. In the context of information 

warfare, this means we may target any of the adversary's information 

functions that have a bearing on his will or capability to fight. In stark 

contrast, our military may defend only military information functions. 

There are many information functions critical to our national security that 

lie outside the military's defensive purview.24 

Indeed, as previously noted, over 95% of military 

communications traffic over commercial communications systems.25 

The issue raises another point: who is a “combatant” in the 

information age? If teenage hackers in the enemy's country unilaterally 

decide to aid their government by creating havoc through their use of 

computers, do they become fair game for attack by the opposition? If 
12

civilian radio and television stations unwittingly broadcast coded messages 

to the enemy's troops can they be attacked? 

2. Principle of Humanity 

The second basic principle is the Principle of Humanity, aimed at 

prohibiting “the employment of any kind or degree of force not necessary 

for the purposes of war, that is for the partial or complete submission of the 

enemy with the least possible expenditure of life, time and physical 

resources.”26 

The Law of Land Warfare forbade the employment of “arms, 

projectiles, or material calculated to cause unnecessary suffering.” 

Included as examples were lances with barbed heads, irregularly shaped 

bullets, bullets with the hard shell heads filed off, bullets dipped in an 

inflammatory substance, and projectiles filled with glass.27 The 1981 

Convention on the Prohibition or Restriction on the Use of Certain 

Conventional Weapons Which May be Deemed to be Excessively 

Injurious or to Have Indiscriminate Effects added weapons which resulted 

in nondetectable fragments in the body, field mines, booby traps, and 

incendiary weapons.28 These proscriptions are all very specific and fail to 

form any cohesive framework from which logical extensions could be 

made. Thus, while bullets dipped in an inflammatory substance are banned, 

the United States has long claimed that nuclear weapons are not per se

excluded under the principle of humanity. Additionally, all of the specific 

weapons listed are rudimentary weapons of an older era with little real 

connection to any of the weapons envisioned for use in information 

warfare. With such specificity and incongruity it would be difficult to 

automatically exclude any information weapon, though the overarching 

ban on weapons calculated to cause unnecessary suffering may provide a 

hazy boundary. 
13

The theoretical depiction of certain types of computer programs as 

“weapons” introduces another problem. The law of armed conflict requires 

any nation desiring to implement a new type of weapon to make a 

determination, prior to its use, regarding its compliance with the principle 

of humanity.29 If a computer program, whether it be a virus, worm, logic 

bomb or something else, is called a “weapon,” this may unwittingly trigger 

a required review. Certainly computer programs in and of themselves have 

not previously been considered weapons in the international community, 

though in some uses their effects may have some striking parallels with 

conventional weapons. 

Some “weapon” use may also be constrained by domestic law 

even if it is only applied internationally. For instance, if in the course of 

employing international infowar data collection techniques “United States 

persons” become subjects, the operation may fall under the purview of 

Executive Order 12333. The order's applicable provisions are as follows: 

2.4 Collection Techniques. Agencies within the Intelligence 

Community shall use the least intrusive collection techniques 

feasible within the United States or directed against United States 

persons abroad. Agencies are not authorized to use such 

techniques as electronic surveillance, unconsented physical 

search, mail surveillance, physical surveillance, or monitoring 

devices unless they are in accordance with procedures established 

by the head of the agency concerned and approved by the 

Attorney General. Such procedures shall protect constitutional 

and other legal rights and limit use of such information to lawful 

governmental purposes. . . 

2.5 Attorney General Approval. The Attorney General hereby is 

delegated the power to approve the use for intelligence purposes, 

within the United States or against a United States person abroad, 

of any technique for which a warrant would be required if 

undertaken for law enforcement purposes, provided that such 

techniques shall not be undertaken unless the Attorney General 

has determined in each case that there is probable cause to believe 

that the technique is directed against a foreign power or an agent 
14

of a foreign power. Electronic surveillance, as defined in the 

Foreign Intelligence Surveillance Act of 1978, shall be conducted 

in accordance with that Act, as well as this Order. 

While domestic law is beyond the scope of this paper, it is worth 

emphasizing that even operations taking place entirely in a foreign country 

or countries may be constrained not only by the foreign country's law and 

international law, but by domestic law as well. This is not peculiar to 

information warfare, but applies across the board. 

Other data collection techniques will likely be treated in the same 

way as espionage, that is, while it is not prohibited by the laws of armed 

conflict, it is punishable by the laws of enemy state if the enemy can 

capture the spy and exercise its jurisdiction over him or her. Infowar roles 

which may fit this bill are “sniffing,” “dumpster diving,” and “cracking.” 

Sniffing generally entails the use of software to record the first 

several characters of a telnet session. This information generally includes 

the username, Internet Protocol (IP) address, and password-enough 

information for the sniffer to breach security and/or pose as the sniffee. 

Dumpster diving, while oftentimes listed as an information 

warfare technique, is nothing more than the low tech rifling through the 

opposition's trash in search of userIDs, passwords, and the like to allow 

infiltration of the enemy's information systems. 

Cracking is the more sophisticated use of computers to access or 

create back doors to the enemy's computer systems. It may also involve 

setting up Trojan horses, circumventing firewalls, and/or attempting to 

obtain root access.30 

In addition to, or in lieu of espionage laws, some countries may 

also have computer crime laws under which such conduct may be 

prosecuted. Of particular note is the United Kingdom's Computer Misuse 
15

Act. This Act broadly proscribes many actions which would be included 

within the sniffing and cracking functions described above: 

(1) A person is guilty of an offence if-- 

(a) he causes a computer to perform any function with intent 

to secure access to any program or data held in any computer; 

(b) the access he intends to secure is unauthorised; and 

(c) he knows at the time when he causes the computer to 

perform the function that that is the case.31 

Of even greater significance, however, is the fact that the Act 

purports to apply extraterritorially, as long as any significant link with 

British jurisdiction exists.32 A significant link includes any access of a 

computer in the U.K.33 Based on the fact that the Internet is designed to 

withstand nuclear attack by sending message packets through any working 

node, the scope of this Act is perhaps broader than would first appear. 

Thus, if a French operative were to attempt to make a nefarious entry into a 

U.S. Department of Defense computer and the message, by happenstance 

were routed through the U.K., the French operative could be tried and 

convicted under U.K. law. There would, of course, still be the sticky 

situation of obtaining jurisdiction over the Frenchman. If he were operating 

under the direction of the French government, France would be unlikely to 

turn him over. And the Frenchman would be well-advised to vacation 

somewhere other than England, for fear that upon entering the country 

authorities there would seize and try him. 

3. Principle of Chivalry 

The third basic principle of the law of armed conflict is the 

Principle of Chivalry. Its premise is that the waging of war should be done 

“in accord with well-recognized formalities and courtesies.”34 This 

principle recognizes that deception is often key to military victory, and 
16

does not outlaw its use, but it does circumscribe how and when it may be 

used within the broad constructs of ruses and perfidy (or treachery). 

Ruses. By international treaty, “[R]uses of war . . . are considered 

permissible.”35 Ruses consist of the use of trickery without reliance on any 

protected sign, symbol or status. The use of misinformation to convince the 

Iraqis that the United States would attack from the shore was a proper use 

of a ruse. The ruse was designed to encourage the Iraqis to set up their 

troops to defend an attack from the shore, thereby allowing for more 

effective attacks against relatively unprepared forces away from the shore 

and an unsupported Iraqi rear flank. 

Perfidy. Perfidy on the other hand is prohibited under the law of 

armed conflict. Protocol I to the Geneva Conventions states, “It is 

prohibited to kill, injure or capture an adversary by resort to perfidy. Acts 

inviting the confidence of an 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 conflict, with intent to betray that 

confidence, shall constitute perfidy.” The protection which one is obliged 

to accord an enemy is largely identified by certain protected symbols 

which have been set out in a series of international agreements. 

Various treaties have established protected status for symbols 

designating medical activities,36 historic, artistic, scientific or cultural 

objects,37 civil defense,38 prisoner of war camps,39 civilian interment 

camps,40 and dangerous forces.41 The UN emblem, the flags, uniforms and 

aircraft markings of neutrals and the enemy, and the white flag of 

surrender42 all denote a special status.43 

None of these symbols would seem likely to come into play in 

information warfare operations. The protected status recognized by these 

symbols, however, may. For instance, suppose Iraq sent a bogus e-mail 
17

message to low level coalition force commanders in the Gulf purporting to 

be from the commander of all coalition forces indicating that Iraq has 

surrendered and all hostilities are to cease immediately. If a commander 

acted on this message believing it to be real, and suffered heavy casualties 

from an Iraqi force he thought was surrendering but was actually attacking, 

would Iraq be guilty of violating the Law of Armed Conflict? The question 

raised is whether such action constitutes a ruse or perfidy. Arguably, 

although Iraq did not directly claim to be surrendering, its act of spoofing 

the United States into so believing and taking advantage of the protected 

status of surrendering troops, may well place its actions into the category 

of perfidy and therefore constitute a LOAC violation. 

Neutrals. The issue of neutrals may pose interesting legal issues 

under information warfare. Generally, nationstates desiring to maintain 

neutrality may not allow belligerents to cross their territory or use their 

ports except to perform emergency repairs. How then does this general 

concept apply in the information era where communications channels crisscross a nation's territory and may well be used by belligerents on either or 

both sides? The Convention on Neutrals44 would seem to suggest that a 

neutral could condone the use of its communications cables without risking 

its neutrality: 

Art. 8. 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.45 

However, if a neutral tried to prohibit the use of its communications 

channels to one of the belligerents it would have to prohibit use of the 

same to the other belligerent(s) as well or place its neutral status in 

jeopardy: 

Art. 9. Every measure of restriction or prohibition taken by a 

neutral Power in regard to the matters referred to in Articles 7 and 

8 must be impartially applied by it to both belligerents. A neutral 
18

Power must see to the same obligation being observed by 

companies or private individuals owning telegraph or telephone 

cables or wireless telegraphy apparatus.46 

In fact, the common use of fiber optic cables and packet-switched 

networks may well make it nearly impossible to deny the use of 

communications facilities to a belligerent without also denying those 

facilities to one's own populace. 

Significantly the treaty does not address telecommunications 

satellites, though the same problems may well exist in selectively denying 

use to some users without jeopardizing all users. 

IV. Treaties 

Having reviewed some of the considerations in applying the laws of war to 

information warfare, this paper will now review the applicability of 

international treaties and customary international law.47 The broad 

definition of information warfare precludes a comprehensive review of all 

treaties which could have some tangential impact. This section will attempt 

only to highlight those treaties which would appear to most directly affect 

the implementation of information warfare operations. 

A. The United Nations Charter 

The waging of aggressive war was outlawed by Article 2, 

paragraph 4 of the Charter of the United Nations: 

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 

manner inconsistent with the Purposes of the United 

Nations. 
19

Instead of “war,” the Charter used the broader concept of “threat 

or use of force.” While some favored defining aggression in the U.N. 

Charter, the United States opposed the idea on the grounds that no 

definition could adequately account for all the circumstances necessary to 

make such a determination.48 The United States' position prevailed. This 

paper does not attempt to refine the definition, but only to provide some 

insight into the concept's interpretation. The term “force” has sometimes 

been used in a broad sense to embrace all types of coercion: economic, 

political and psychological as well as physical. Western nations have 

largely rejected such a comprehensive definition, the support coming 

primarily from Third World countries.49 

The U.N. General Assembly adopted a nonbinding definition in 

its Resolution on the Definition of Aggression.50 Aggression was limited to 

the use of “armed force” in Article 1. An enumeration of such acts is set 

out in Article 3, though Article 4 makes clear the list is not exhaustive. 

The economic, ideological and other modes of aggression 

were carefully considered . . . but the result was an 

interpretation that they did not fall within the term 

`aggression' as it had been used in the Charter.51 

Nor did the definition adopted by the General Assembly address the threat 

of force. 

Despite the ambiguity of the terminology used in the Charter and 

the relatively narrow definition of aggression adopted by the General 

Assembly, most international attorneys hold that “As long as the act of 

force . . . compels a State to take a decision it would not otherwise take, 

Article 2(4) has been violated.”52 This is a very broad interpretation which 

could potentially pull many information warfare activities within its 

proscriptive ambit, including propagandizing through the Internet. 

However, Article 19 of the Universal Declaration of Human Rights 

declares: “Everyone has the right to freedom of opinion and expression; 
20

this right includes freedom to hold opinions without interference and to 

seek, receive and impart information and ideas through any media and 

regardless of frontiers.” 

Even if certain actions are clearly identified as unauthorized uses 

of force, the difficulty then comes in detecting the actions and/or 

identifying the perpetrator. 

It is not at all clear that information-warfare steps by a 

potential adversary would be readily detectable: the “How 

do you know you are at war?” question may be quite 

difficult to answer.53 

B. The Outer Space Treaty 

The Outer Space Treaty states that “States Parties to the Treaty 

undertake not to place in orbit around the earth any objects carrying 

nuclear weapons or any other kinds of weapons of mass destruction . . ..”54

The term weapons of mass destruction has generally referred to nuclear, 

chemical and biological weapons. It is unclear whether the destructive 

potential of information weapons could move it into this class as well. 

Even in that event, however, the stipulation that the orbiting object not 

“carry” such a weapon would seem to militate against the inclusion of 

information weapons under under a strict reading of this provision. 

Satellites would act more as a relay point for an information warfare 

“weapon,” than as a “carrier” of the weapon. 

The Outer Space Treaty also states that, “The moon and other 

celestial bodies shall be used by all States Parties to the Treaty exclusively 

for peaceful purposes. . . [T]he testing of any type of weapons and the 

conduct of military manoeuvres on celestial bodies shall be forbidden.”55

The term “celestial bodies” refers only to natural bodies, such as the moon, 

asteroids, and planets, not to man-made satellites, and as such would 

appear to limit little the current scope of information warfare activities. 
21

Under this treaty and other space treaties, states are responsible for 

insuring that space is used for the benefit of mankind and for peaceful 

purposes. At least one international legal scholar contends that “This 

applies to data flows as to any other activity.”56 Indeed the issue of 

Transborder Data Flow (“TBDF”) has become an especially important one 

in the field of international commerce. The abbreviation TBDF is 

shorthand for international information transfer, “though TBDF is the more 

widely used term.”57 What falls within the scope of “peaceful purposes” 

has met with much debate among international legal scholars, though, “The 

term `peaceful' is generally taken to mean nonaggressive as opposed to 

nonmilitary.”58 Thus, even infowar activities envisioned for the moon or 

other celestial bodies would apparently not be proscribed by the treaty 

unless they were aggressive in nature. Even then, some have suggested a 

non-peaceful purpose may legitimately be made of space objects when 

acting in “self-defense.”59 

INTELSAT60 and INMARSAT61 have similar “peaceful purpose” 

provisions applicable to classes of satellites. While the same analysis 

would apply, the likelihood of using these satellites for information 

warfare operations would presumably be much higher than using the moon 

or other celestial bodies, so the analysis becomes significantly more 

important. If a satellite is used to relay military logistical data, is the 

purpose other than the permitted “peaceful purpose”? Most would 

probably hold such communications to be routine and not prohibited. What 

if the same data is relayed in anticipation of war? Would its character then 

change? Some may argue it does. 

C. The Moon Treaty 

The Moon Treaty62 makes reference to the concept of the 

Common Heritage of Mankind: 
22

“The Common Heritage of Mankind” (“CHM”) is a 

concept that can be found in the [Moon Treaty], in the 

United Nations Convention on the Law of the Sea and 

elsewhere. Broadly, the CHM concept, in part, reflects a 

belief that all nations should share in an identified 

resource, even if, in the case of the moon, some nations 

lack the technological means to access and exploit that 

resource. At some point a studied attempt probably will 

be made to apply the CHM concept to information, 

broadly defined, as a natural resource.63 

While the term “natural resources” generally conjures images of tangible 

things, like moon rocks, minerals from asteroids and the like, natural 

resources can include such intangible natural resources as “the broadcast 

spectra, orbital positions, and scientific information.”64 Nevertheless, one 

legal scholar has noted the inappropriateness of applying this doctrine to 

information, especially when trying to carry with it the rest of the baggage 

associated with the concept, such as the concepts of sovereignty over 

resources and depletion of resources. 

Whatever else may be said for the CHM principle, the 

concept would be difficult to apply to information as a 

natural resource. It would be illogical and impracticable 

to attempt to extend a concept such as sovereignty, which 

has been applied to extraction of mineral resources, to 

information. Information is not a natural resource.65 

D. The Liability Convention 

Another space treaty also raises issues concerning how 

information warfare may be impacted by existing international law. Article 

II of the Liability Convention states that, “A launching State shall be 

absolutely liable to pay compensation for damage caused by its space 

object on the surface of the earth or to aircraft in flight.”66 Based on the 

fact that the treaty took effect in 1972, it would seem clear that this treaty 

provision was not intended to constrain the still far-off concept of 

information warfare. Rather, the provision was likely oriented towards 
23

more direct damage, such as that caused by a falling satellite.67 The 

definition of “damage” in Article I does not dissuade one from so 

concluding, though its language is arguably broad enough to encompass 

more: “(a) The term `damage' means loss of life, personal injury or other 

impairment of health; or loss of or damage to property of States or of 

persons, national or juridical, or property of international 

intergovernmental organizations.”68 

Since the treaty does not limit how the space object causes 

damage, could it be used to assess liability against a state which used a 

satellite to conduct information warfare operations? It seems unlikely, 

based on the context in which the treaty was negotiated, but warplanners 

should at least consider responses to a claim under this provision by a state 

which claims infowar damages. 

Could the term property be construed to include intangible 

property such as the data stored in a computer? Certainly it could, though 

again such a reading seems strained. One does not normally speak of 

“damaged” information, though data which has been corrupted by a virus 

could be termed damaged. 

That the treaty limits liability to damage inflicted “on the surface 

of the earth or to aircraft in flight,” may also raise the issue that it does not 

extend to data manipulations performed in cyberspace.69 The 

counterargument would then be that the collateral damage of the 

manipulated data occurred on the surface of the earth or to an aircraft in 

flight. 

Art. IV allows for exoneration from liability if the damage to the 

claimant state (or person represented by the claimant state) was caused by 

the gross negligence of the claimant or an act or omission done with intent 

to cause damage. The article goes on to say, however, that there will be no 
24

exoneration if the launching state was not complying with international law 

(specifically the United Nations Charter and the Outer Space Treaty). 

While it seems unlikely that this treaty would apply to 

information warfare, a contrary determination could prove 

exceptionally expensive. The compensation which the 

launching State shall be liable to pay for damage under 

this Convention shall be determined in accordance with 

international law and the principles of justice and equity, 

[to return the claimant to the status quo ante.]70 

Some recent novels and conjecture in the popular press have suggested the 

possibility of a nation taking out Wall Street or the Federal Reserve 

system.71 Consider the costs of returning the United States to the status quo 

ante after such a debacle. 

E. The International Telecommunication Convention 

The International Telecommunication Convention may further 

constrain the information war planner. It states that, “All 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 . . .”72 Time magazine reported that “the Air Force's latest 

secret weapon” is a converted cargo plane named Commando Solo.73

Commando Solo can purportedly “jam a country's TV and radio broadcasts 

and substitute messages--true or false--on any frequency.” This would 

appear to be a violation of both the above cited article and Art. 37, which 

reads, “Members agree to take the steps required to prevent the 

transmission or circulation of false or deceptive distress, urgency, safety or 

identification signals . . .”74 But Art. 38 of the same treaty states, “Members 

retain their entire freedom with regard to military radio installations of 

their army, naval and air forces.”75 
25

F. Guidelines for the Security of Information Systems 

The Organisation for Economic Cooperation and Development 

(OECD) on November 26, 1992, adopted guidelines for the security of 

information systems.76 The OECD comprises 24 countries in North 

America, Europe and the Pacific region. The Group of Experts which 

prepared the document consisted of government delegates and scholars in 

various fields including law and computer science. Indeed the Group of 

Experts was chaired by an attorney, the Honorable Michael Kirby, 

President of the Court of Appeal, Supreme Court of New South Wales, 

Australia. Unfortunately, the Guidelines sidestep the issue of information 

warfare, never mentioning it under any of its various rubrics throughout the 

document. The Guidelines do address computer crime, and to this extent 

address some of the same concerns raised by information warfare. Though, 

in the end the Guidelines are just that, guidelines. 

The Guidelines also address the problem of jurisdictional 

competence, suggesting that countries seek to harmonize their rules on 

extraterritorial jurisdiction and review their domestic law to determine its 

suitability for dealing with transborder offenses.77 In addition, the 

Guidelines encourage the adoption of international agreements. In the 

meantime, however, the Guidelines make clear the they “do not affect the 

sovereign rights of national governments in respect of national security and 

public order (“ordre public”), subject always to the requirements of 

national law.” 

V. Conclusion 

General Fogelman was insightful for recognizing the importance 

of ascertaining the legal boundaries and implications of activities taking 
26

place under the catch phrase of information warfare. Unfortunately, for the 

same reasons that many recognize this information age as a Third Wave or 

new era, many of the issues now being raised are without clear precedent. 

This paper dealt only with the international legal implications, and 

in this arena we see that most of the treaties and customary international 

law to which legal scholars are looking for guidance was developed, in 

many cases, decades before information warfare concepts were envisioned. 

Nevertheless, certain basic principles can be carried forward--principles 

such as military necessity, proportionality and chivalry. The specifics in 

how these general principles will be applied to certain information warfare 

scenarios will likely require gradual honing. As countries begin to agree on 

certain standards, these may well develop into a new customary 

international law. More immediate desires for regulatory guidance may 

prompt nations to seek consensus through the treaty making process. 

Some prominent thinkers have claimed that our First and Second 

Wave legal system is so hopelessly unable to deal with Third Wave issues, 

that it must be replaced promptly, and ignored to the extent necessary in 

the interim. This seems an overreaction prone to anarchy. On the other 

hand, some claim that the issues raised by information warfare are really 

no different than those that have been raised throughout time and that 

thoughtful application of the existing law is all that is needed. This extreme 

also seems off the mark and betrays a naïveté of dealing with complex 

issues in an entirely new realm. However, for now, we have only the 

existing law and must apply it as best makes sense, working to fill the law's 

gaps as they are identified. The fast moving world of the Third Wave will 

provide challenges in accomplishing this, but the ease and speed with 

which information can be exchanged may also facilitate the task. 
27

ENDNOTES _______________________________ 

1 Computer World, June 5, 1995, p. 5 

2

 Manfred Lachs, Article: Views From The Bench: Thoughts On Science, 

Technology And World Law, 86 A.J.I.L. 673 (1992) (Judge and former 

President of the International Court of Justice) citing Joseph Weizenbaum, 

Computer Power and Human Reason: From Judgment to Calculation

(1976). 

3 Washington Post, “The Pentagon's New Nightmare: An Electronic Pearl 

Harbor,” July 16, 1996, p. C03. 

4 Time, “Onward Cyber Soldiers,” Aug. 21, 1995, p. 44. 

5 Time, “Onward Cyber Soldiers,” Aug. 21, 1995, p. 40 

6 Washington Post, “The Pentagon's New Nightmare: An Electronic Pearl 

Harbor,” July 16, 1996, p. C03. 

7

 John Arquilla and David Ronfeldt, of The RAND Corporation, have 

defined information warfare as being the sum of netwar and cyberwar. 

Netwar they define as “societallevel conflict waged through Internetted 

modes of communication.” Cyberwar they define as “conducting and 

preparing to conduct military operations according to information 

principles.” 

8 Working definition recognized by the School of Information Warfare and 

Strategy of the National Defense University as of 11/16/93. 

9

 Department of the Air Force, Cornerstones of Information Warfare, at 2 

(1995). 

10 Cornerstones of Information Warfare, at 3. 

11 Winn Schwartau, Information Warfare: Chaos on the Electronic 

Superhighway, p. 13 (1994). 

12 Richard Power, Current and Future Danger: A CSI Primer on Computer 

Crime & Information Warfare, p. 27 (1995). 

13 Ibid. 
28

14 Washington Post, “The Pentagon's New Nightmare: An Electronic Pearl 

Harbor,” July 16, 1996 at C03. 

15 Cornerstones of Information Warfare, at 3. This definition is similar to 

one proposed by the Office of the Assistant Secretary of Defense for C3I. 

16 The Law of Armed Conflict also applies to certain conflicts internal to a 

nation-state, but that is beyond the scope of this paper. 

17 Lieutenant Colonel William J. Fenrick, Article: The Rule Of 

Proportionality And Protocol I In Conventional Warfare, 98 Mil. L. Rev. 

91 (1982) [Lt Col Fenrick was a Legal Officer with the Canadian Forces.] 

18 The Geneva Conventions of 12 August 1949, Commentary 20 (1958). 

19 The legal ambiguities raised by cyberspace are not unique to discussions 

of information warfare. Computer crimes have raised some of the same 

issues. To what extent can Muslim countries enforce their criminal 

sanctions against the importation of pictures of scantily clad women when 

Internet sites around the world offer such pictures to anyone with a modem 

or other means of accessing the Internet. Or take the example of offering 

unauthorized gambling nationwide. One Internet site in Turks and Caicos 

is already doing so, despite the objections of the U.S. Department of 

Justice. So far the Justice Department has been unable to prevent the 

gambling outfit from continuing its operations. 

An attack on the military's Rome laboratories in New York by a 

British hacker resulted in a conviction primarily because both the United 

States and Britain had laws outlawing the particular conduct engaged in by 

the hacker and agreed to cooperate in the capture and prosecution of the 

individual. Adept hackers oftentimes travel electronically through several 

countries en route to the target of their attack, both to befuddle the 

investigator and to complicate the international legal issues involved in 

their arrest and prosecution. 

20 The Air Force Judge Advocate General School, The Military 

Commander and the Law 580, (September 1994). 

21General Orders 100, Section I, paragraph 14. 

22 Col Owen E. Jensen, “Information Warfare: Principles of Third-Wave 

War,” Airpower Journal (Winter 1994). 

23 Ibid. at 37 (emphasis added). 
29

24 Cornerstones of Information Warfare, at 3 n.1. 

25 Science Applications International Corporation, Information Warfare: 

Legal, Regulatory, Policy and Organizational Considerations for 

Assurance, A Research Report for the Chief, Information Warfare Division 

(J6K), Command, Control, Communications and Computer Systems 

Directorate, Joint Staff, The Pentagon, Washington, DC (July 4, 1995). 

The fact that a country's military uses civilian communications for a large 

portion of its message traffic increases the justification for claiming such a 

target is a military target. 

26 The Military Commander and the Law 580 (September 1994). 

27 Article 34, Field Manual 27-10 (1956). 

28Some may claim the Convention did not “add” these weapons to the list 

of forbidden weapons, but reduced to writing that which, over time, had 

already come to be recognized by many countries around the world. 

29Protocol I to the Geneva Conventions, Art. 36. Indeed, a new “means or 

method” of warfare requires a similar determination under the article: “In 

the study, development, acquisition or adoption of a new weapon, means or 

method 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.” 

30Firewalls are computers which serve as protective front-ends to a 

network. All traffic which seeks access to the network must pass through 

the firewall computer, which is designed to ferret out intruders. Root 

access is that access level which allows the user to execute the widest 

range of commands. Such access is normally only afforded to the system 

operator. Hackers who obtain such access can wreak havoc on the system. 

31 Section 1(1), Computer Misuse Act 1990. 

32 Section 4(2), Computer Misuse Act 1990. 

33 Section 5(2), Computer Misuse Act 1990 reads: 

(2) In relation to an offence under section 1, either of the 

following is a significant link with domestic jurisdiction-- 
30

(a) that the accused was in the home country concerned 

at the time when he did the act which caused the 

computer to perform the function; or 

(b) that any computer containing any program or data to 

which the accused secured or intended to secure 

unathorised access by doing that act was in the home 

country concerned at that time. 

34 The Military Commander and the Law 581 (September 1994). 

35 The Hague Regulations of 1907, Art. 24. 

36 Red Cross, Red Crescent, Red Lion and Sun, or Red Star of David. (Art. 

38, 1949 Geneva Convention I and Art. 18, 1977 Geneva Protocol I, to the 

1949 Geneva Conventions. The Red Lion and Sun is largely obsolete since 

on September 4, 1980 Iran indicated its intent to use the Red Crescent 

henceforth). 

37 Red circle with triple red spheres in the circle on a white background 

(Roerich Pact of 1935) or royal blue square and triangle on a white shield 

(Art. 16, 1954 Hague Convention and Art. 20, The Hague Regulations) or 

rectangular panel divided diagonally into two triangular portions, the upper 

black and the lower white (Art. 5, 1907 Hague Convention IX). 

38 Blue triangle on orange background (Art. 66, 1977 Geneva Protocol I, to 

the 1949 Geneva Conventions). 

39 PW or PG on a square flag (Art. 23, 1977 Geneva Protocol I, to the 1949 

Geneva Conventions). 

40 IC on a square flag (Art. 83, 1977 Geneva Protocol I, to the 1949 Geneva 

Conventions). 

41 Three bright orange circles of equal size on the same axis (Art. 56(7), 

1977 Geneva Protocol I, to the 1949 Geneva Conventions). 

42 White flag is recognized as a symbol of surrender under Article 32, 1907 

Hague Regulations. 

43 Air Force Pamphlet 110-34, 25 July 1980. 
31

44 Convention Respecting the Rights and Duties of Neutral Powers and 

Persons in Case of War on Land, The Hague, October 18, 1907. 

45 Convention on Neutrals. 

46 Convention on Neutrals. 

47 The applicability of some of the treaties discussed infra was raised in an 

unpublished “Legal Roadmap” document prepared in 1993 by the Aegis 

Research Corp. 

48 Whiteman, Digest of International Law 740, (1965). 

49 Schachter, International Law in Theory and Practice 110-113 (1991). 

50 G.A. Res. 3314 (XXIX) (1974), G.A.O.R. 29th Sess., Supp. 31 at 42. 

51 Broms, The Definition of Aggression, 154 Rec. des Cous 299, 386 

(1977-I). 

52 Schacter, International Law in Theory and Practice 110-113 (1991). 

Many international attorneys find support for their belief in the 

International Court of Justice cases involving the Corfu Channel and 

Nicaragua. 

53 George F. Kraus, Jr., CDR (ret.), U.S. Navy, “Information Warfare in 

2015,” Proceedings p. 42 (Aug. 1995) 

54 Article IV of the Treaty on Principles Governing the Activities of States 

in the Exploitation and Use of Outer Space, Including the Moon and Other 

Celestial Bodies, Jan. 27, 1967, 18 UST 2410, 610 UNTS 205 [hereinafter 

the Outer Space Treaty]. The United States is a signatory to this treaty, as 

are Australia, Bulgaria, Canada, Czechoslovakia, Denmark, Finland, the 

German Democratic Republic, Hungary, Japan, Mongolia, Nepal, Niger, 

Republic of Korea, Sierra Leone, Sweden, Ukrainian Soviet Socialist 

Republic, Union of Soviet Socialist Republics, United Arab Republic, and 

Great Britain. 

55 Article IV of the Outer Space Treaty. Similar language is included in the 

Treaty Governing the Activities in Outer Space, on the Moon, and Other 

Celestial Bodies, G.A. Res. 34/68, 34 U.N. GAOR Supp. (No. 46) at 77, 

U.N. Doc. A34/46 (1979) [hereinafter Moon Treaty]. 
32

56 Ronald Wellington Brown, “Perspective: Economic and Trade Related 

Aspects of Transborder Data Flow: Elements of a Code for Transnational 

Commerce,” 6 J. Intl. L. Bus. 1, 1 (Spring 1984) (footnotes omitted). 

57 Brown, at 2. 

58 Pamela L. Meredith, “The Legality Of A HighTechnology Missile 

Defense System: The ABM And Outer Space Treaties,” 78 A.J.I.L. 418 

(1984) citing S. Gorove, Studies in Space Law: Its Challenges and 

Prospects p. 85-94 (1977); S.H. Lay & H. Taubenfeld, The Law Relating 

to Activities of Man in Space p. 25 et seq. (1970); D. Goedhuis, The 

Changing Legal Regime of Air and Outer Space p. 27 (1978); N. Matte, 

Space Policies Program Today and Tomorrow p. 68 (1980). She notes also 

that some scholars are of a different opinion, specifically referencing Lachs 

and Vlasic. 

59 See Andrzej Jacewicz and Jerzy Markowski, Kosmos A. Zbrojenia, 

Aspekty Polityczne, Militarne, Prawne [Outer Space and the Arms Race. 

Political, Military and Legal Aspects]. 

60 Agreement Relating to the International Telecommunications Satellite 

Organization, p. 23 UST 3813, TIAS No. 7532 ( Aug. 20, 1971) 

[hereinafter cited as INTELSAT Agreement]. 

61 Convention on the International Maritime Satellite Organization, p. 31 

UST 1, TIAS No. 9603 (Sept. 3, 1976) [hereinafter cited as INMARSAT]. 

62 The Agreement Governing the Activities of States on the Moon and 

Other Celestial Bodies, 18 I.L.M. 1434 (1979), has not been ratified by the 

United States. 

63 Brown, pp. 65-66. 

64 Brown. 

65 Brown, p. 68. 

66 Convention on International Liability for Damage Caused by Space 

Objects [hereinafter the Liability Convention], 24 UST 2389, TIAS No. 

7762, reproduced in 10 ILM 965 (1971). The Convention on Registration 

of Objects Launched Into Outer Space, Jan. 14, 1975, 28 U.S.T. 695, 

T.I.A.S. No. 8480, 1023 U.N.T.S. 15 [hereinafter Registration 

Convention], appears to provide assistance for those seeking 
33

compensation. It requires all launching states to register their space objects, 

thus making it easier to assign liability when the infliction of damage can 

be associated with a registered object: 

In order to promote international cooperation in the peaceful exploration 

and use of outer space, States Parties to the Treaty conducting activities in 

outer space . . . agree to inform the Secretary-General of the United 

Nations as well as the public and the international scientific community, to 

the greatest extent possible and practicable of the nature, conduct, locations 

and results of such activities. On receiving the said information, the 

Secretary-General of the United Nations should be prepared to disseminate 

it immediately and effectively. (Art. XI.) 

67 A later reference to component parts may further this interpretation: 

“Each State Party to the Treaty that launches or procures the launching of 

an object into outer space . . . is internationally liable for damages to 

another State Party to the Treaty or to its natural or juridical persons by 

such object or its component parts on the Earth . . ..” (Art. VII) 

68 Art. I, Liability Convention. 

69 Art. III allows for liability for damage “caused elsewhere than on the 

surface of the Earth,” but extends it only to damage caused to space objects 

or person or property on board such space objects. 

70 Art. XII, Liability Convention. 

71 See, e.g., Tom Clancy, Debt of Honor; Time,”Onward Cyber Soldiers,” 

Aug. 21, 1995 p.43, and others. 

72 Art. 35, International Telecommunication Convention, MalagaTorremolinos, Oct. 25, 1973, 28 UST 2495, TIAS No. 8572. The Law of 

the Sea Treaty has a similar provision, there prohibiting the broadcasting 

from the high seas so as to interfere with the radio broadcasts of coastal 

states. 

73 Time, “Onward Cyber Soldiers,” Aug. 21, 1995 at 43. 

74 Art. 37, International Telecommunication Convention. 

75 Art. 38, International Telecommunication Convention. Paragraph 2 of 

Art. 38 states: “Nevertheless, these installations must, so far as possible, 

observe statutory provisions relative to giving assistance in case of distress 
34

and to the measures to be taken to prevent harmful interference, and the 

provisions of the Administrative Regulations concerning the types of 

emission and the frequencies to be used, according to the nature of the 

service performed.” It would seem that jamming all of a country's stations 

and substituting for them the transmissions of a belligerent would 

constitute a “harmful interference.” The language “so far as possible” 

which precedes this section may afford the squirm room necessary to 

circumvent this provision in time of conflict. 

76 OCDE/GD (92) 190, Paris 1992. 

77 OCDE/GD (92) 190, at 33. 
INSS OCCASIONAL PAPERS 

1. Explaining Weapons Proliferation: Going Beyond the 

Security Dilemma. Gregory J. Rattray, July 1994 

2. The Ukrainian Military: Instrument for Defense or 

Domestic Challenge? Oleg Strekal, November 1994 

3. North Korea's Nuclear Program: The Clinton 

Administration's Response. William E. Berry, Jr., March 1995 

4. Environmental Assistance as National Security Policy: 

Helping the Former Soviet Union Find Solutions to its 

Environmental Problems. Robert L. Dunaway, November 1995 

5. Economic Power in the Sino-U.S. Relationship. Kevin F. 

Donovan, December 1995 

6. Nuclear Proliferation: Diminishing Threat? William H. 

Kincade, December 1995 

7. Nuclear Proliferation: The Diplomatic Role of NonWeaponized Programs. Rosalind R. Reynolds, January 1996 

8. Five Minutes Past Midnight: The Clear and Present 

Danger of Nuclear Weapons Grade Fissile Materials. Guy B. 

Roberts, February 1996 
UNITED STATES AIR FORCE ACADEMY 

Lieutenant General Paul E. Stein Superintendent 

Brigadier General Ruben A. Cubero Dean of the Faculty 

HEADQUARTERS, US AIR FORCE 

PLANS AND OPERATIONS DIRECTORATE 

Major General Robert E. Linhard Director of Plans 

Lieutenant Colonel Todd Bodenhammer Chief, National 

Security Negotiations Division 

USAF INSTITUTE FOR NATIONAL SECURITY STUDIES 

Lieutenant Colonel Jeffrey A. Larsen Director 

Major Timothy J. Krein, USAFR Editor 

Ms Marsha Taylor Cover Design