Abstract
This Chapter explores the acceptability under the jus ad bellum, that body of international law governing the resort to force as an instrument of national policy, of computer network attack. Analysis centers on the United Nations Charter’s prohibition of the use of force in Article 2(4), its Chapter VII security scheme, and the inherent right to self-defense codified in Article 51. Concluding that traditional applications of the use of force prohibition fail to adequately safeguard shared community values threatened by CNA, the Chapter proposes an alternative normative framework based on scrutiny of the consequences caused by such operations.
Previously published in 37 Columbia Journal of Transnational Law (1999) 885.
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Notes
- 1.
See Swett 1995. To illustrate the global nature of the phenomenon, consider the number of computers linked to the worldwide net per 10,000 persons for selected countries: Finland, 500+; U.S., 300+; Norway, Australia, New Zealand, Sweden, 200+; Denmark, Switzerland, Canada, Netherlands, Singapore, 100+; United Kingdom, nearly 100. See Office of the Assistant Secretary of Defense for Command, Control, Communications and Intelligence, Directorate for Information Operations, Presentation at National Defense University (Jan. 1998).
- 2.
See 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) [hereinafter Brock]; Accounting and Information Management Division, Information Security: Computer Attacks at Department of Defense Pose Increasing Risks (GAO/T-AIMD-96-92, May 22, 1996).
- 3.
See Brock, supra note 2.
- 4.
On the changing face of war and its relationship to the law of armed conflict, see generally Schmitt 1998. For more general discussion of the “revolution in military affairs,” see Cohen 1998, ch. 13; Drew 1987, at 21; Fitzsimonds 1995, at 30; Gourè 1993, at 175; Krepinevich Jr. 1995; 1994, at 23; McKenzie Jr. 1995, at 15; Shelat 1994, at 52.
- 5.
Bibliographies on information operations are available on-line. See, e.g., An IW Bibliography (visited Feb. 24, 1999) http://www.infowar.com/RESOURCE/IWBIBl.html-ssi; Air University, Information Warfare (visited Feb. 24, 1999) http://www.au.af.mil/au/aul/bibs/infowar/if.htm; Naval War College, Library Notes (visited Feb. 24, 1999) http://www.nwc.navy.mil/library/libinfwf.htm. For an introduction to the subject, see generally Alberts and Papps 1997; Campen 1996; Campen and Dearth 1998; Libicki 1995a; b; Schwartau 1994. A number of these works and others on information warfare are available on-line at the National Defense University’s electronic books website. See National Defense University Press Books On-line (visited Feb. 24, 1999) http://www.ndu.edu/inss/books/books.html.
- 6.
Joint Chiefs of Staff, Joint Pub. 3–13, Joint Doctrine for Information Operations GL-5 (Oct. 9, 1998) [hereinafter Joint Pub. 3–13].
- 7.
- 8.
Although efforts to affect an opponent’s information base and protect one’s own have characterized warfare throughout history, it is only in the last decade that IO has been recognized as a distinct form of warfare meriting its own separate doctrine, policy, and tactics.
- 9.
Joint Pub. 3–13, supra note 6, at GL-7. For the IO policy of U.S. forces, see generally Information Operations, U.S. Dep’t of Def. Directive (DODD) S-3600.1 (Dec. 9, 1996); Joint Information Operations Policy, Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3210.01A (Jan. 1996). Other official IO-related guidance includes: Defensive Information Warfare Operations Implementation, Chairman of The Joint Chiefs of Staff Instruction (CJCSI) 6510.01 (Aug. 22, 1997); Joint Chiefs of Staff, Joint Pub. 3–13.1, Joint Doctrine for Command and Control Warfare (Feb. 7, 1996) [hereinafter Joint Pub. 3–13.1]; Joint Chiefs of Staff, Joint Pub. 3–53, Doctrine for Joint Psychological Operations (July 10, 1996) [hereinafter Joint Pub. 3–53]; Joint Chiefs of Staff, Joint Pub. 3–58, Joint Doctrine for Military Deception (May 31, 1996) [hereinafter Joint Pub. 3–58]; U.S. Dep’t of the Navy, Chief of Naval Operations Instruction 3430.26, Implementing Instruction for Information Warfare Command and Control (Jan. 18, 1995); U.S. Dep’t of the Navy, Naval Doctrine Publication 6, Naval Command and Control (May 19, 1995); U.S. Dep’t of the Air Force, Air Force Doctrine Document 2–5, Information Operations (Aug 5, 1998); U.S. Dep’t of the Army, U.S. Army Field Manual 100–106, Information Operations (Aug. 27, 1996); U.S. Marine Corps, Marine Corps Order 3430.1, Policy for Information Operations (May 19, 1997). See also U.S. Dep’t of the Air Force, the Cornerstones of Information Warfare (1995). Many U.S. military publications are available on-line. See joint Electronic Library (visited Feb. 24, 1999) http://www.dtic.mil/doctrine/jel/.
- 10.
Joint Pub. 3–13, supra note 6, at GL-7 (emphasis added).
- 11.
See U.S. Dep’t of Defense, Joint Pub. 1-02, Dictionary of Military and Associated Terms 387 (March 23, 1994, as amended through June 10, 1998), available at DODD Dictionary of Military Terms (visited Feb. 24, 1999) http://www.dtic.mil/doctrine/jel/doddict/ [hereinafter JOINT PUB. 1-02]. The key distinguishing characteristic of sabotage is its design to interfere with the national defense. Thus, an attack on the banking system would not constitute sabotage, but one on a factory manufacturing military equipment would.
- 12.
See id. at 217. Information operations must also be distinguished from command and control warfare (C2W), a form of IO with the specific purpose of influencing, degrading, or destroying an opponent’s ability to direct its forces. On C2W, see Joint Pub. 3–13.1, supra note 9.
- 13.
Defensive IO “integrate[s] and coordinate[s] policies and procedures, operations, personnel, and technology to protect and defend information and information systems.” Activities that support defensive IO include “information assurance (IA), OPSEC [operations security], physical security, counterdeception, counterpropoganda, counterintelligence (CI), EW [electronic warfare], and SIO [special information operations].” Joint Pub. 3–13, supra note 6, at I-10. Each of these terms is defined in the Glossary to Joint Pub. 3–13, supra note 6. Offensive IO, by contrast, is intended to “affect adversary decision makers and achieve or promote specific objectives.” Id. at I–10.
- 14.
“Actions executed to deliberately mislead adversary military decision makers as to friendly military capabilities, intentions, and operations, thereby causing the adversary to take specific actions (or inactions) that will contribute to the accomplishment of the friendly mission.” Joint Pub. 1-02, supra note 11, at 28l.
- 15.
“Planned operations to convey selected information and indicators to foreign audiences to influence their emotions, motives, objective reasoning, and ultimately the behavior of foreign governments, organizations, groups, and individuals. The purpose … is to induce or reinforce foreign attitudes and behavior favorable to the originator’s objectives.” Id. at 358.
- 16.
“Any military action involving the use of electromagnetic and directed energy to control the electromagnetic spectrum or to attack the enemy.” Id. at 15l.
- 17.
“Information operations that by their sensitive nature, due to their potential effect or impact, security requirements, or risk to the national security of the United States, require a special review and approval process.” Joint Pub. 3–13, supra note 6, at GL-10.
- 18.
Strategic objectives are those at the national or multinational level. Operational objectives lie at the level of major military campaigns or of a military theater of operations. Tactical objectives arise at the individual battle or engagement level.
- 19.
In fact, IO has been characterized as possibly having its “greatest impact in peace and the initial stages of crisis.” Joint Chiefs of Staff, Information Warfare: A Strategy for Peace … The Decisive Edge in War 5 (n.d.). This is because many, if not most, of its effects are other than physical destruction. Indeed, according to the JCS, “IW [sic] can make an important contribution to defusing crises; reducing the period of confrontation and enhancing the impact of informational, diplomatic, economic, and military efforts; and forestalling or eliminating the need to employ forces in a combat situation.” Id.
- 20.
See Molander et al. 1996.
- 21.
See Kanuck 1996, at 289.
- 22.
See Molander 1996, at 74.
- 23.
See President’s Commission on Critical Infrastructure Protection (Oct. 1997).
- 24.
See id. at A-46.
- 25.
See Uchida 1997. In order to test computer security, DlSA periodically uses typical “hacker-tools” to attack DOD computers. During a test of over 26, 000 unclassified computers in 1995, only 2% of the intrusions were detected, and of those only 5% were properly reported to the appropriate authorities. See Defense Science Board Task Force 1996. In another study looking at the results of 59 assessments involving 37,518 computers, 3.6% had easily exploitable “back-doors,” 65% could be penetrated once the intruder was inside the network, 96% of professionally conducted penetrations go undetected by systems administrators and users, and 73% of detected penetrations were not reported. See Strassmann 1998.
- 26.
See Office of Science and Technology Policy, Executive Office of the President 1997.
- 27.
See id.
- 28.
Id. The Defense Science Board Task Force also noted this point.
Our Task Force had many enlightening discussions about the potential for effects to cascade through one infrastructure (such as the phone system) into other infrastructures. This example is particularly important because most of our other infrastructures ride on the phone system. No one Seems to know quite how, where, or when effects actually would cascade; nor what the total impact would be.
Defense Science Board Task Force 1996, at 2–14.
- 29.
The President’s Commission on Critical Infrastructure Protection focused on the existence of infrastructures and the vulnerabilities they represent.
Life is good in America because things work … We are able to assume that things will work because our infrastructures are highly developed and highly effective … By infrastructure we mean more than just a collection of individual companies engaged in related activities; we mean a network of independent, mostly privately owned, manmade systems and processes that function collaboratively and synergistically to produce and distribute a continuous flow of essential goods and services.
It noted the criticality of certain aspects of the infrastructure.
-
Transportation … moves goods and people within and beyond our borders, and makes it possible for the United States to play a leading role in the global economy.
-
Oil and gas production and storage … infrastructure fuels transportation services, manufacturing operations, and home utilities.
-
The water supply infrastructure assures steady flow of water for agriculture, industry (including various manufacturing processes, power generation, and cooling), business, fire fighting, and our homes.
-
Government services … consists of federal, state, and local agencies that provide essential services to the public.
-
Banking & finance … manages trillions of dollars, from deposit of our individual paycheck to the transfer of huge amounts in support of major global enterprises.
-
Electrical power infrastructure … [includes] generation, transmission, and distribution systems that are essential to all other infrastructures and every aspect of our economy.
-
Telecommunications [have] … been revolutionized by advances in information technology in the past two decades to form an information and communications infrastructure, consisting of the Public Telecommunications Network (PTN), the Internet, and the many millions of computers in home, commercial, academic, and government use … connected to one another … Networking is essential to a service economy as well as to competitive manufacturing and efficient delivery of raw materials and finished goods. The information and communications infrastructure is basic to responsive emergency services. It is the backbone of our military command and control system. And it is becoming the core of our educational system.
President’s Commission on Critical Infrastructure Protection President’s Commission on Critical Infrastructure Protection (Oct 1997), at 3–4.
-
- 30.
Gumahad II 1997, at 14, 18, citing Wired Magazine, July–Aug. 1993. An interesting IO scenario was used during a war game at National Defense University. Set in the year 2000, it involved an OPEC meeting that goes awry when Saudi Arabia opposes Iranian demands for an oil production cutback in order to drive prices up. Iran mobilizes and conducts several attacks on Saudi warships. It also begins to conduct information warfare operations to destabiIize the Saudi regime and keep the United States and United Kingdom out of the fray. A Saudi refinery is destroyed when computer malfunctions in its control mechanisms cause a fire; a “logic bomb” placed in the computer system running U.S. railways causes a passenger train to derail; computer “worms” begin to corrupt the U.S. military’s classified deployment database, and a “sniffer” disrupts fund transfers in the Bank of England. See Lohr 1996, at D-l.
- 31.
On asymmetry, see generally Schmitt 1998.
- 32.
Planning Considerations for Defensive Information Warfare, Task Order 90-SAlC-019, Dec. 16, 1993 (prepared for The Defense Information Systems Agency, Joint Interoperability and Engineering Organization, and Center for Information Systems Security) (citing Steele 1993) [hereinafter Planning Considerations].
- 33.
See Planning Considerations, supra note 32, at 17.
- 34.
See Jackson et al. 1997–1998.
- 35.
See President’s Commission on Critical Infrastructure Protection (Oct. 1997, at 9. Moreover, there will be approximately 1,300,000 “telecommunications systems control software specialists with tools and know how to disrupt or take down the public telecommunications network.” Id.
- 36.
See Brock, supra note 2, at 5.
- 37.
See Lung and Feng 1996. According to the report, preparations are underway for the establishment of an Information Warfare Institute, a non-governmental entity that will be responsible for “strategic planning … theoretical studies, and technological development. Its aim is to enable high-technology advances from the non military sector to be applied to the military sector under the guidance of military theory.” Id. Russia is also interested in enhancing IO capabilities. See, e.g., FitzGerald 1997.
- 38.
- 39.
Office of the Press Secretary, The White House, A National Security Strategy for a New Century (May 17, 1997) (visited Feb. 23, 1999) http://wwwl.whitehouse.gov/WH/html/library-plain.html.
- 40.
Joint Chiefs of Staff, National Military Strategy: Shape, Respond, Prepare Now, A Military Strategy for A New Era (1997) (visited Feb. 23, 1999)http://www.dtic.mil/jcs/nms.
- 41.
U.N. Charter Article 2, para 4.
- 42.
See id. Article 1, para 1.
- 43.
For instance, the General Assembly, in its resolution regarding the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, has provided that,
Every State has a duty to refrain in its 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. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.
G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8082 (1970), reprinted in. Rauschning et al. 1997, at 3. The resolution was adopted by acclamation.
- 44.
The analysis which follows will address uses of force, but applies equally to threats to use force. In other words, to the extent that CNA constitutes a use of force, the threat to commit such an attack will also be prohibited. On threats, see Sadurska 1988.
- 45.
Originally, the draft of the Charter did not contain the terms territorial integrity or political independence, and the proposal for their inclusion was controversial. However, the travaux make it clear that the “other manner” language filled any possible voids in coverage. See Doc. 1123, I/8, 6 U.N.C.I.O Docs. 65 (1945); Doc 784, I/1/27, 6 U.N.C.I.O. Docs. 336 (1945); Doc. 885, I/1/34, 6 U.N.C.I.O. Docs. 387 (1945). See also Brownlie 1963, at 265–269. For a brief discussion of this issue in the context of information operations, see James N. Bond, Peacetime Foreign Data Manipulation as One Aspect of Offensive Information Warfare: Questions of Legality under the United Nations Charter Article 2(4), at 55–56 (June 14, 1996) (Advanced Research Project, United States Naval War College).
- 46.
- 47.
Unfortunately, this approach occasionally leads to tortuous efforts to justify operations, such as those in response to terrorist attacks, in Charter (usually self-defense) terms. A classic example would be the 1986 raid (Operation El Dorado Canyon) on Libya by U.S. aircraft in response to the terrorist bombing intended to kill U.S. servicemen at a disco in Berlin. On the operation and its justification, see President’s Address to the Nation, Apr. 14, 1986, reprinted in U.S. Exercises Right of Self-defense Against Libyan Terrorism, Dep’t St. Bull, at 1 (June 1986). Much attention has been paid to the fact that Libya was planning attacks on up to thirty U.S. diplomatic facilities worldwide. See Joint News Conference by Secretary Schultz and Secretary Weinberger, April 14, 1986, reprinted in U.S. Exercises Right of Self-defense Against Libyan Terrorism, supra, at 3 (June 1986).
- 48.
- 49.
See Reisman 1985, at 282.
- 50.
For an interesting projection of factors likely to affect the use of force in the future, see D’Amato 1998, at 1.
- 51.
Vienna Convention on the Law of Treaties, May 23, 1969, Article 31(1), 1155 U.N.T.S. 331 (1969). This point was reiterated by the International Court of Justice in The Competence of the General Assembly for the Admission of a State to the United Nations case. In that case, the ICJ noted that “the first duty of a tribunal which is called upon to interpret and apply the provisions of treaty is to endeavor to give effect to them in their natural and ordinary meaning in the context in which they occur.” General List No. 9, 1950 I.C.J. 4, 8 (Mar. 3) (advisory opinion).
- 52.
- 53.
Vienna Convention, supra note 51, Article 31(2).
- 54.
Id. Articles 41, 46.
- 55.
U.N. Charter Article 111.
- 56.
Vienna Convention, supra note 51, Article 32. (“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable”).
- 57.
“Legislative history,” specifically the record of negotiations leading to final adoption of the Convention.
- 58.
See Doc. 784, I/1/27, 6 U.N.C.I.O. Docs. 331, 334, 609 (1945). Originally, the Dumbarton Oaks Proposal for the prohibition read as follows: “All members of the Organization shall refrain from the threat or use of force in any manner inconsistent with the purposes of the Organization.” Doc. 1123 I/8, 6 U.N.C.I.O. Docs. 65, 68 (1945).
- 59.
See Doc. 2, G/7 (e)(4), 3 U.N.C.I.O. Docs. 251, 253–54 (1945).
- 60.
See, e.g., Inter-American Treaty of Reciprocal Assistance, Sept. 2, 1947, Article 1, T.I.A.S. No. 1838, 21 U.N.T.S. 77: “… undertake in their international relations not to resort to the threat or the use of force in any manner inconsistent with the provisions of the Charter of the United Nations or of this Treaty.” See also Pact of the League of Arab States, March 22, 1945, Article 5, 70 U.N.T.S. 238, which only speaks of force: “Any resort to force in order to resolve disputes arising between two or more member States of the League is prohibited.” This instrument was drafted contemporaneously with the U.N. Charter.
- 61.
Charter of the Organization of American States, Apr. 30, 1948, T.I.A.S. No. 2361, 119 U.N.T.S. 3.
Article 18: 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. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements.
Article 19: No State may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another State and obtain from it advantages of any kind.
- 62.
Recall that Brazil had proposed that Article 2(4) of the U.N. Charter encompass economic coercion. See supra text accompanying note 58.
- 63.
See Rauschning et al. 1997, prin. I, annex (The General Assembly “[s]olemnly proclaims the following Principles: 1. The Principle that States 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.”).
- 64.
- 65.
See, e.g., “(a) war of aggression,” “irregular forces or bands,” “acts of civil strife or terrorist acts,” “military occupation,” “disarmament,” etc. Rauschning et al. 1997, prin. I, annex.
- 66.
Id. For example, “[n]o State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.” Id.
- 67.
G.A. Res. 42/22, U.N. GAOR, 42d Sess., 73d plen. mtg., Agenda Item 131, annex, Article I ¶ 7–8 (1988), reprinted in Rauschning et al. 1997, at 7.
- 68.
As to both declarations, recall that by Article 31(3) of the Vienna Convention subsequent agreement regarding interpretation of a treaty is an appropriate interpretive consideration. See Vienna Convention, supra note 51, Article 31 (3).
- 69.
On economic sanctions, see Szasz 1998, at 455.
- 70.
This is not to say that international law scholars missed the distinction; it is only to say that it has attained particular significance in the last decade. For instance, Hans Kelsen noted:
There are two kinds of force not exercised by use of arms: (1) an action of a state directed against another state which constitutes a violation of international law but which is not performed by use of arms; (2) a reprisal which does not involve the use of armed force. Article 2, paragraph 4, refers to the ‘use of force.’ It therefore prohibits both kinds of force. Hence, not only is the use of force prohibited but any action of a member state illegal under general international law which is directed against another state is prohibited by the Charter, and the member states are forbidden to resort not only to war but also to reprisals.
Kelsen 1956. Ian Brownlie disagrees with this assessment, arguing that “there is no evidence … that it bears the meaning suggested by Kelsen.” Brownlie 1963, at 362.
- 71.
Military and Paramilitary Activities (Nicar. v. D.S.), 1986 I.C.J. 4,119, (June 27). Note that the ICJ was not actually applying Article 2(4) qua 2(4) because application of the Charter was barred by the U.S. acceptance of jurisdiction (pursuant to Article 36(2) of the Court’s Statute) only on the condition that all States involved in the case be party to any multilateral treaty used by the Court to adjudicate the issue. Therefore, the Court applied the customary international law prohibition on the resort to force.
- 72.
For a discussion of force as extending beyond armed force, see Paust and Blaustein 1974.
- 73.
On the appropriateness of applying the economic instrument, see Cameron 1991.
- 74.
These aims derive from those expressed in the Preamble to the U.N. Charter:
[T]o save succeeding generations from the scourge of war, which twice in our life-time has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.
U.N. Charter preamble, art. X, para X. The final aim was perceptively articulated in Reisman 1991. To a very great extent, these shared values overlap.
- 75.
Of course, the aims are perhaps at greater risk from internal sources, but Westphalian state-centrism, with its emphasis on the principle of sovereignty, has held back the progress of international law in responding to internal threats. Fortunately, the effort to limit inter-state conflict usually advances community-wide aspirations without imperiling the internal autonomy that sovereignty cherishes.
- 76.
U.N. Charter Article 1.
- 77.
Moreover, a purely consequence-based standard would risk falling prey to dissonant (e.g., cultural) valuation paradigms. On the subject of valuation paradigms, see Schmitt 1999.
- 78.
U.N. Charter Article 41.
- 79.
See Brownlie 1963, at 362.
- 80.
On non-lethal weapons, see Duncan 1998.
- 81.
Arguably, responsibility is a seventh commonality. Armed coercion is the exclusive province of states; only they may generally engage in uses of force across borders, and in most cases only they have the ability to do so with any meaningful impact. By contrast, non-governmental entities are often capable of engaging in other forms of coercion (propaganda, boycotts, etc.). Therefore, with armed coercion the likelihood of blurring the relative responsibility of the State, a traditional object of international prescription, and private entities, usually only the object of international administration, narrows. In sum, the consequences of armed coercion are more susceptible to being charged to the State actor than in the case of other forms of coercion. However, this is an issue of assessing State responsibility, not lawfulness. It is a practical challenge, not a normative one.
- 82.
For summaries of applicable domestic law, see Joint Chiefs of Staff, Information Assurance: Legal, Regulatory, Policy and Organization Considerations (3rd ed. 1997), ß 4; Scott 1998. As to responsibility (see supra note 78 and accompanying text), in the macro sense it will be difficult to assess because most computer network attacks can be conducted by non-governmental individuals with access to the requisite hard and software; it requires no special infrastructure available only to a government. However, though this factor would augur against characterizing computer network attack in the abstract as a use of force, because it is technologically-dependent, technological means may be able to reliably ascertain the source of the attack as a specific sate or agent thereof. To the extent this is true of a particular method of attack, it increases the appropriateness of labeling it a use of force.
- 83.
Consequences should not be confused with motivation (justification). The operational code operates based primarily on the latter; it looks to the rationale for the use of force to justify it, not what its consequences are.
- 84.
Proportionality is a customary international law principle, codified in 1977 Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, Articles 51.5(b) and 57.2(iii), reprinted in 3 Harold S. Levie, Protection of War Victims: Protocol 1 to the 1949 Geneva Conventions 174, 337 (1980). [hereinafter Additonal Protocol I]. It is defined as “[t]he principle that seeks to limit damage caused by military operations by requiring that the effect of the means and methods of warfare used must not be disproportionate to the military advantage sought.” Verri 1992.
- 85.
Additional Protocol I, supra note 84, Articles 54, 55 and 56.
- 86.
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10, 1976, Article I. para 1, 31 U.S.T.S. 333, 1108 U.N.T.S. 151, 16 I.L.M. 88, 91 (1977).
- 87.
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Res. 2131, U.N. GAOR, 20th Sess., Supp. No. 14, at 12, U.N. Doc. A/6220 (1965), reprinted in Rauschning et al. 1997, at 26.
- 88.
For example, regarding international telecommunications law see International Telecommunication Convention (with Annexes, Final Protocol, Additional Protocols, Resolutions, Recommendations and Opinions), Oct. 25, 1973, 28 U.S.T. 2495, 1209 U.N.T.S. 32; International Telecommunication Convention, Nov. 6, 1982, S. Treaty Doc. No. 99–6.
- 89.
See Brownlie 1990.
- 90.
Shaw 1997. The comment is made with particular regard to subsequent practice. Professor Shaw cites, as support for his proposition, Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174 (Apr. 11); Competence of the General Assembly for the Admission of a State to the United Nations, 1950 I.C.J. 4 (Mar. 3); Certain Expenses of the U.N., 1962 I.C.J. 151 (July 20); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (June 21).
- 91.
The obvious danger, though, is that the international community will not react, possibly because the actor is a member of the P-5 and vetoes any action. This would encourage states to respond unilaterally at lower levels of force.
- 92.
See Statute of the International Court of Justice, June 26, 1945, Article 38.1(b), 832 U.S.T.S. 993, 1978 Y.B.U.N. 1197. Customary law is a “general practice accepted as law.” Id.
- 93.
Belief that compliance with the practice is out of a sense of legal obligation.
- 94.
See North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 44 (Feb. 20).
- 95.
On the issue of the customary nature of the prohibition, see 1986 I.C.J. 4, 98–101, 147.
- 96.
- 97.
The Court cited the unanimous adoption in 1970 of the Declaration on Friendly Relations, Rauschning et al. 1997. See 1968 I.C.J. 4, 100. Recall that the Declaration reiterated the language of Article 2(4). For criticism of this approach, see D’Amato 1987. On the relationship between the Charter and the Declaration, see Kirgis 1987.
- 98.
- 99.
1968 I.C.J. 4, 96–97.
- 100.
See supra text accompanying notes 77–80.
- 101.
In the Commission’s commentary on the draft articles of the Law of Treaties (Vienna Convention), the Charter’s prohibition of the use of force was cited as “a conspicuous example” of jus cogens. See Report of the International Law Commission, 18th Sess., 1966 (II) I.L.C.Y.B. 247. When such peremptory norms emerge, any existing treaty in conflict with them become void and terminate. See Vienna Convention, supra note 51, Article 53.
- 102.
See 1968 I.C.J. 4, 100.
- 103.
Vienna Convention, supra note 51, Article 53.
- 104.
1968 I.C.J. 4, para 202.
- 105.
Declaration on Inadmissibility of Intervention, supra note 87,
-
1.
[N]o State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are condemned.
-
2.
No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind …
-
5.
Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.
Id. at 26. Note that although the United States voted in favor of the resolution, it stated that the resolution was “only a statement of political intention and not a formulation of law.” U.N. GAOR, 20th Sess. at 436, U.N. Doc. A/C.1/SR. 1423. That said, the Declaration on Friendly Relations purports to articulate basic principles of international law, including that of non-intervention. Rauschning et al. 1997. The United States offered no statement challenging that characterization.
-
1.
- 106.
See Rauschning et al. 1997.
- 107.
In the Corfu Channel case, the International Court of Justice held, in response to the United Kingdom’s argument that it had entered Albanian waters to seize evidence, that, “[i]ntervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful states and might easily lead to perverting the administration of international justice itself.” The Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 35 (Apr. 9).
- 108.
U.N. Charter Article 39. For an excellent commentary on the article, see Frowein 1995, at 605.
- 109.
U.N. Charter Article 41 (According to the article, “[t]hese may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”).
- 110.
U.N. Charter Article 42 (“Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”).
- 111.
When engaged as combatants, U.N. forces follow the Guidelines for U.N. Forces Regarding Respect for International Law (FAD/TM, May 1996, 005797) (on file with Author). On the applicability of the law of armed conflict to peace operations, see Palwankar 1993, at 227; Memorandum of the ICRC to the Governments of the States Party to the Geneva Conventions and Members of the United Nations on the Applicability of the Geneva Conventions by the Military Units Placed at the Disposal of the United Nations, Nov. 10, 1961, reprinted in Int’l Rev. Red Cross, Dec. 1961, at 490.
- 112.
Proposals were made by Bolivia [see Doc. 2 G/14 (r), 3 U.N.C.I.O. Docs. 585 (1945)], the Philippines [see Doc. 2 G/14 (k), 3 U.N.C.I.O. Docs. 538 (1945)], and Czechoslovakia [see Doc. 2 G/14 (b), 3 U.N.C.I.O. Docs. 469 (1945)]. The Bolivian proposal was supported by Columbia, Egypt, Ethiopia, Guatemala, Honduras, Iran, Mexico, New Zealand, and Uruguay. See Doc. 442 III/3/20, 12 U.N.C.I.O. Docs. 341 (1945). The U.S. and U.K. opposed a delineation of acts of aggression on the ground that doing so might force responses by the Security Council that would not otherwise be justified. Id. at 341–342. Ultimately, the proposal for defining aggression was rejected by a 22–12 vote. See Doc. 502/3/22, 12 U.N.C.I.O. Docs. 349 (1945).
- 113.
Definition of Aggression, G.A. Res. 3314 (XXIX), Article 1, U.N. GAOR, 29th Sess., Supp. No. 31, at 142, U.N. Doc. A/9631 (1975), 13 I.L.M. 710 (1974), reprinted in Rauschning et al. 1997, at 13. Judge Schwebel of the United States addressed the significance of the resolution in his dissent in the Nicaragua case.
The significance of the Definition of Aggression – or of any definition of aggression – should not be magnified. It is not a treaty. It is a resolution of the General Assembly which rightly recognizes the supervening force of the United Nations Charter and the supervening authority in matters of aggression of the Security Council. The Definition has its conditions, its flaws, its ambiguities and uncertainties. It is open ended. Any definition of aggression must be, because aggression can only be ultimately defined and found in the particular case in light of its particular facts. At the same time, the Definition of Aggression is not a resolution of the General Assembly which purports to declare principles of customary international law not regulated by the United Nations Charter … This resolution rather is an interpretation by the General Assembly of the meaning of the provisions of the United Nations Charter governing the use of force …
1968 I.C.J. 4, 345.
- 114.
In Article 3, the General Assembly offered examples of aggression: Any of the following acts, regardless of a declaration of war, shall be 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 a State of the territory of another state … or any annexation …;
-
(b)
Bombardment … against the territory of another State or the use of any weapons by a State against the territory of another State;
-
(c)
… blockade…;
-
(d)
An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
-
(e)
The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond term of the agreement;
-
(f)
The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
-
(g)
The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
Definition of Aggression, supra note 113, art. 3.
-
(a)
- 115.
U.N. Charter Article 1, para 2.
- 116.
See Frowein 1995, at 612.
- 117.
See S.C. Res. 713, D.N. SCOR, 3009th mtg., U.N. Doc. S/RES/713 (1991). This resolution, and all other Security Council Resolutions are available online at http://www.un.org/Docs/sc.htm.
- 118.
See S.C. Res. 733, U.N. SCOR, 3039th mtg., U.N. Doc. S/RES/733 (1992).
- 119.
See S.C. Res. 788, U.N. SCOR, 3138th mtg., U.N. Doc. S/RES/788 (1992).
- 120.
See S.C. Res. 748, U.N. SCOR, 3063rd mtg., U.N. Doc. S/RES/748 (1992). Until the demise of the Cold War, the Council, due to the existence of off-setting bloc vetoes, proved impotent in responding to threats to the peace. In only one case (Rhodesia) did it find a threat to the peace and authorize forceful measures in response. In Security Council Resolution 221, the Council authorized the United Kingdom to deny ships carrying oil destined for Rhodesia access, by force if necessary, to the Port of Beira in Mozambique. See S.C. Res. 221, U.N. SCOR, 1277th mtg., U.N. Doc. S/RES/221 (1966). The impotence of the Security Council led the General Assembly to adopt the Uniting for Peace Resolution in 1950. It provides that:
[I]f the Security Council, because of the lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendation to Members for collective measures, including … the use of armed force.
G.A. Res. 377(V), para 1, 1950 U.N.Y.B. 193–195.
- 121.
- 122.
The French text of the Charter uses the term “agression armèe.”
- 123.
The limit of self-defense to response to an armed attack is not universally accepted. See Farer 1985. Professor Schachter has responded to such assertions forcefully and convincingly:
Some commentators have gone so far as to contend that economic action of such intensity and magnitude would justify forcible self-defense by the target state, and collective defense by its allies. I disagree. Even egregious economic aggression whether or not illegal, does not constitute an armed attack or a use of force in the Charter sense. Allowing forcible reprisal to non-military coercion would broaden the grounds for use of force to an intolerable degree.
Schachter 1986. See also Report of the International Law Commission on the Work of its Thirty-Second Session (1980), U.N. Doc. A/35/10, reprinted in [1980] II(2) Y.B.I.L.C. 53, n. 176.
It is often said that acts of unarmed aggression also exist (ideological, economic, political, etc.), but even though they are condemned, it cannot be inferred that a state which is a victim of such acts is permitted to resort to the use of armed force in self-defense. Hence, these possibly wrongful acts do not fall within the purview of the present topic, since recourse to armed force, as analysed in the context of self-defence, can be rendered lawful only in the case of armed attack.
- 124.
Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), reprinted in 2 John Moore Digest of International Law 411-12 (1906). The Caroline incident involved a Canadian insurrection in 1837. After being defeated, the insurgents retreated into the United States where they recruited and planned further operations. The Caroline, a naval vessel, was being used by the rebels. British troops crossed the border and destroyed the vessel. Britain justified the action on the grounds that the United States was not enforcing its laws along the frontier and that the action was a legitimate exercise of self-defense. Id. at 409–11.
- 125.
See International Military Tribunal (Nuremberg), Judgement and Sentences, 41 Am J Int’l L. 172, 205 (1947). There is significant state practice regarding assertions of anticipatory self-defense. Professor Bowett has noted a number of the earlier examples:
Pakistan justified the entry of her troops into Kashmir in 1948 on this basis before the Security Council, an argument opposed only by India. Israel’s invasion of Sinai in October, 1956, and June, 1967, rested on the same argument. The OAS has used the same argument in relation to the blockade of Cuba during the 1962 missile crisis. Several states have expressed the same argument in the Sixth Committee in connection with the definition of aggression and the UN itself invoked the principle of anticipatory self-defense to justify action by ONUC in Katanga in December, 1961, and December, 1963. Following the invasion of Czechoslovakia by the USSR in 1968, it is permissible to assume that the USSR now shares this view, for there certainly existed no ‘armed attack.’
- 126.
See, e.g., Schachter 1984.
- 127.
Professor Dinstein perceptively notes that Article 2 of the Definition of Aggression Resolution refers to the first use of force as prima facie evidence of aggression. In other words, the burden is upon the actor to demonstrate that its use of force was not aggression. But this necessarily means that there are first uses of force that do not amount to aggression and are, therefore, not wrongful. See Dinstein 1994, at 187.
- 128.
Id. at 190.
- 129.
“C3” refers to command, control, and communications systems. Similar terms of art include “C2,” command and control, and “C3ISR,” command, control, communications, intelligence, surveillance, and reconnaissance. “C2W,” command and control warfare, would include attacks on systems encompassed by each of these terms. See supra note 11 and accompanying text.
- 130.
Michael Walzer has suggested a similar line of reasoning:
The line between legitimate and illegitimate first strikes is not going to be drawn at the point of imminent attack but at the point of sufficient threat. That phrase is necessarily vague. I mean it to cover three things: a manifest intent to injure, a degree of active preparation that makes that intent a positive danger, and a general situation in which waiting, or doing anything other than fighting, greatly magnifies the risk.
Walzer 1992.
- 131.
Self-defense must be both necessary and proportional. “There is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law.” 1968 I.C.J. 4, 94 cited with approval in Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 4, 226, at para 41, 31 I.L.M. 809, 822 (1996). See also Restatement (Third) of The Foreign Relations Law of the United States ß 905 (1987). Professor Brownlie labels proportionality “the essence of self-defence.” Brownlie 1963, at 279 n. 2.
- 132.
In 1980, the International Law Commission catalogued some of the more important and influential positions on the subject. Among those advocating limiting the right to situations involving armed attack were: Kinz 1947; Kelsen 1948; Jessup 1948; Wright 1959. Taking the contrary approach were Brierly 1963; Green 1957; McDougal and Feliciano 1961. The ILC took no position on the issue.
- 133.
McDougal and Feliciano 1961, at 207–208.
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Abbreviations
- ATC
-
Air traffic control
- CNA
-
Computer network attacks
- DII
-
Defense information infrastructure
- DISA
-
Defense Information Systems Agency
- DOD
-
United States Department of Defense
- ICJ
-
International Court of Justice
- IO
-
Information operations
- IW
-
Information Warfare
- WMD
-
Weapons of mass destruction
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Schmitt, M.N. (2011). Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework . In: Essays on Law and War at the Fault Lines. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-740-1_1
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