Perhaps because of the newness of much of the technology involved, no provision of international law explicitly prohibits what we now know as information warfare. This absence of prohibitions is significant because, as a crudely general rule, that which international law does not prohibit it permits.31 But the absence is not dispositive, because even where international law does not purport to address particular weapons or technologies, its general principles may apply to the use of those weapons and technologies.32 Nevertheless, existing international law leaves space for many types of information warfare techniques in many circumstances.
Any attack involving networks and telecommunications may implicate the International Telecommunication Union (ITU) and its underlying charter, the International Telecommunication Convention (ITC), which apply to international wire and radio frequency communications.33 In practice, the ITU may not substantially limit information warfare activities, particularly by the United States and especially in a wartime context.
The primary concerns of the ITU are interoperability and interference.34 Its predecessor organization, the International Telegraph Union, was established in 1865 to facilitate international telegraph traffic, mainly within Europe.35 One of the Union's early sets of regulations for radio required interoperability of maritime radio systems, after several dangerous naval incidents occurred because the Marconi Wireless Company, which held the exclusive right to install and operate shipboard radio equipment, refused to permit its operators to communicate with any station that did not use Marconi equipment.36
The ITU and the regulations promulgated under it do have some applicability to information warfare attacks that use the electromagnetic spectrum or international telecommunication networks. First, broadcasting stations from one nation may not interfere with broadcasts of other states' services on their authorized frequencies.37 The International Frequency Regulation Board (IFRB) of the ITU allocates the electromagnetic spectrum to prevent interference.38 Even military installations must observe the noninterference requirement.39 Additionally, offshore radio stations are banned, 40 and states may not carry out the transmission of false or misleading signals.41 Finally, governments must protect the secrecy of international correspondence,42 although they retain the right to stop radio or wire transmissions for national or domestic security purposes.43
The aforementioned provisions would seem to block the disruption or spoofing of adversaries' telecommunications, but in practice they may not. First, the rules against interference do not apply between belligerents, so wartime communications are fair game.44 Secondly, even in peacetime, violation of the ITU rules and regulations may have limited repercussions, especially for a country as significant in international telecommunications as the United States. The IFRB is more of a coordinating body than a regulatory agency,45 and it has no actual authority to enforce its decisions; rather, countries respect its edicts against interference so that their own communications will be similarly protected.46 Even if international sanctions appeared likely, the United States might decide that the risks it faced from external interference would not outweigh its need to conduct operations against a particular adversary. Finally, it is important to note that even where information warfare activities do violate the ITU or its regulations, mere violations are more likely to be considered breaches of contractual obligations under treaty than acts of war justifying forceful responses.47
Interestingly, the Charter of the United Nations, drafted 50 years ago, appears to contemplate such interference with a country's communications as "infoblockades." Article 41 provides that in its effort to address breaches of the peace, the UN Security Council may call upon UN members to disrupt an aggressor's "rail, sea, air, postal, telegraphic, radio, and other means of communication."
Because of the importance of satellites for international telecommunications, as well as for military (especially U.S.) command, control, communications, and intelligence, many information warfare attacks (including jamming or spoofing of communications or efforts to overcome them) may involve orbital assets, and thus implicate space law. Space law, though, leaves ample room for information warfare.
The fundamental document of space law, the multilateral 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the "Outer Space Treaty"), provides that all states shall be free to explore and use outer space on a basis of equality and that no state may place into Earth orbit any objects carrying nuclear weapons or any other kind of "weapon of mass destruction."48 The 1979 Agreement Concerning the Activities of States on the Moon and Other Celestial Bodies (the "Moon Treaty") applies similar prohibitions to the moon,49 and also states that the moon shall only be used for peaceful purposes.50 The 1971 Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT)51 and the 1976 Convention on the International Maritime Satellite Organization (INMARSAT)52 also affect telecommunications and the use of space, but their relevance is limited to principles of nondiscrimination among nations using the relevant satellites.
None of these conventions bars information warfare activities that make use of satellite assets.53 First, although some might argue that state practice and such agreements as the Moon Treaty have created a legal norm of peaceful use of outer space or the avoidance of orbital arms races,54 it is unquestionable that space can be, and has been, used for military purposes. Orbital surveillance is legal and common,55 and space is routinely used for military communications, navigation, and weapons guidance. In any event, the meaning of "peaceful use" of outer space is unsettled,56 and, with its often nonlethal, physically nonintrusive character, it is possible that much of "information warfare" could be considered "peaceful."57
Second, for the Outer Space Treaty's prohibition against orbital weapons of mass destruction to apply, it would first have to be determined that the weapons used in an information warfare attack, particularly an electronically based one, were weapons of mass destruction.58 Many information warfare attacks, which may have no direct physical effects, cannot easily be considered to cause mass destruction in the same way as would, say, an atomic bomb. Furthermore, assuming that the weapons of information warfare could constitute "weapons of mass destruction," those weapons, even when they use satellites, might not be considered to be in space. For example, when a satellite is used to transmit a signal for computer intrusion or sabotage or in communications spoofing, the ultimate "weapon of mass destruction" (the originator of the signal) may actually be on the ground, and the satellite only a conduit for the attack, just as satellites used for guidance of intercontinental ballistic missiles would not be "weapons of mass destruction."59
State practice, itself a major source of customary international law,60 seems to permit much of what would go into information warfare. First, espionage, although universally criminal under domestic laws, does not, by itself, violate international law.61 Furthermore, orbital remote sensing, which may include the bombardment of a country's territory with radar or other forms of electromagnetic radiation, is permissible during war or peace.62
Second, an adversary's communications are recognized as legitimate targets for disruption during war. Undersea cables, including those connecting belligerents with neutrals, have been interfered with during all naval wars since the Spanish-American War, as Article 15 of the 1884 Convention for the Protection of Undersea Cables exempts belligerents.63 For example, as World War I began in August 1914, the British cableship Telconia cut Germany's undersea cables, and reeled in the loose ends to prevent repair.64 Governments have conducted radio jamming in both peace and war for over 60 years, beginning with Austria's efforts to block propaganda broadcast from Nazi Germany in 1934.65 Finally, ruses have been part of warfare for millennia and their legitimacy has been explicitly recognized;66 just as the original, ancient Trojan Horse was legal, so too might be some "Trojan Horse" pieces of software.
Despite the novelty of some information warfare techniques, international law poses some constraints on the conduct of information warfare, just as it does on the traditional forms of warfare that use kinetic force for their impact. Nevertheless, characteristics of information technology and warfare pose problems to those who would use international law to limit information warfare, and leave legal space for those who would wage such warfare.
By treaty as well as by longstanding customary law, the territory of neutral states is supposed to be inviolable by the forces of belligerents.67 Apparently, then, an attack through a network that crosses neutral territory, or using a neutral country's satellites, computers, or networks, would infringe upon that neutral's territory, just as would an overflight by a squadron of bombers or an incursion by armed troops. The attack would thus be considered illegal and, perhaps, an act of war against the neutral.68 Conversely, a neutral's failure to resist the use of its networks for attacks against another country may make it a legitimate target for reprisals by the country that is the ultimate target of the attacks.
Although the argument that electronic incursion would violate neutrality is strong, a counter-argument exists. The encroachments beyond a nation's borders that may violate its neutrality have, in the past, been physical intrusions by troops, ships, or planes. Attacking a neutral's networks, satellites, or computers might not violate the state's neutrality because it might involve no physical encroachment (and might not even constitute an "attack" in the first place69). Significantly, although neutrals must not allow any belligerent to move troops or supplies through their territory,70 or to erect military radio stations there,71 neutrals have no such obligation to prevent belligerents from using their publicly accessible communications equipment.72
Further, as a practical matter, despite an unambiguous rule to the contrary,73 belligerents have quite significantly violated prohibitions against the erection and use of non-public military communications facilities in neutral territory for military purposes. Thus, the vitality of rules regarding neutrals and telecommunications may have been weakened, as countries have acted as if those laws did not, in fact, have legal force. During World War II, for example, belligerents on both sides took advantage of the neutrality of Portugal, as well as perhaps Turkey and Switzerland, by constructing and using telecommunications facilities for military purposes within those states.74 In sum, it is not obvious whether the use of a neutral nation's computers, networks, and communications facilities would violate that nation's neutrality, or open that nation up to belligerent reprisals.
International humanitarian law would seem to welcome the nonlethal "combat" that information warfare promises, but that body of law, which is a combination of conventions and longstanding customary law,75 may constrain information warfare activities as it does traditional warfare. The fundamental principle of this body of law is that the permissible methods of hurting an enemy are not unlimited,76 and that the cruelty of war must be mitigated and circumscribed.77 Nevertheless, although that principle unquestionably survives, even if it is sometimes honored only in the breach, it is not obvious that all types of damage that information attacks would inflict are the kinds of injuries against which humanitarian law endeavors to protect.
Although humanitarian law protects combatants as well as noncombatants, the most significant relevant general tenet of humanitarian law is the protection of civilians. This principle was codified over a century ago in the St. Petersburg Declaration of 1868, which recognized that the only legitimate object of war was to weaken an enemy's military forces.78 Civilians, as such, may not be the object of an attack. Much of the law addressing the fate of civilians stems from concern over artillery bombardment, and later aerial bombing, as that was how civilians, unless they were loitering near a battlefield, were most likely to come under fire, and it consistently places civilians off limits for attack. Under the Hague Convention (IV) of 1907, military forces could not attack or bombard "by whatever means" undefended towns, dwellings or buildings,79 a provision that has carried over into the charter of the tribunal considering war crimes in the former Yugoslavia.80 Similarly, the Charter of the Nuremberg Tribunal condemned wanton bombing of civilian targets.81
Despite such legal protections, the reality is that civilians are often victims of modern warfare, without legal consequences for those who hurt them. Nevertheless, when attacks are planned and executed, attackers are supposed to try to avoid injuring civilians, even collaterally. Attacks are to be directed solely toward "military objectives," which have been defined (to the extent such a definition is meaningful) as "those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."82 To the end of confining attacks to military objectives and limiting civilian casualties, nations may not use weapons that make it impossible for their targeters to distinguish between civilian and military targets (and of course, the targeters must make such distinctions).83
The planning and execution of attacks must also include considerations of "proportionality" between civilian damage and the military objective attained. Proportionality is a dual doctrine, arising from customary international law. It applies to both whether a given level of force is appropriate in response to a particular grievance (as part of the law of the use of force, or jus ad bellum),84 and whether a given action is appropriate in light of its objectives and the casualties that will result (as part of the law of armed conflict, or jus in bello).85 In the context of humanitarian concern, proportionality derives in part from the Christian "just war" doctrine. Commanders must minimize civilian casualties, subject to the need to accomplish a particular military mission, and they must weigh the cost of civilian lives against the benefit to be gained by the mission.86
On its face, international humanitarian law anticipates technological change relatively well. Even though some information warfare weapons and techniques could not even have been contemplated when the humanitarian legal principles were developed, those principles can still apply. The "Martens Clause," which has been a part of major humanitarian conventions since 1899, asserts that even in cases not explicitly covered by specific agreements, civilians and combatants remain under the protection and authority of principles of international law derived from established custom, principles of humanity, and from the dictates of public conscience, and that they are not left to the arbitrary judgment of military commanders.87 In other words, for purposes of humanitarian law, attacks will be judged largely by their effects, rather than by their methods.
Despite its apparent flexibility in coping with technological change, international law may not easily deal with information warfare. It seems obvious that information warfare attacks that were the direct and intentional cause of noncombatant death and destruction-such as disruption of an air traffic control system that caused a civilian airliner to crash, or corruption of a medical database, causing civilians or wounded soldiers to receive transfusions of the incorrect blood type-could violate the laws of war.88 It is less obvious that attacks with less tangible results, such as the disruption of a financial or social security system, or the disclosure of confidential personal information, constitute the sort of injury against which humanitarian law is supposed to protect civilians, even though for some victims, the consequences of disruption of, say, the banking system, could be more painful than a bombing that damaged a dwelling.
In considering whether information attacks against civilians may violate humanitarian law, it is important to remember that all wars cause suffering for civilians, ranging from deprivations as resources must be diverted to military purposes, to disruption of government services, to destruction of buildings and loss of life, to outright mass starvation, without apparent legal consequences, and often with the law's blessing. Indeed, although the legality of such a strategy might now be questioned,89 the starvation of the Japanese population was part of the U.S. naval strategy in World War II. Similarly, the hardship imposed on Iraqi civilians by the U.S. and UN embargo against Iraq was supposed to either influence Saddam Hussein or convince the Iraqi people to overthrow him.
The dual-use nature of many telecommunications networks and much equipment further complicates the questions of the applicability of humanitarian law as a constraint on information warfare. These dual uses contribute to the blurring of the distinction between military and civilian systems and, consequently, between military targets, which are legitimate, and civilian ones, which are not. Some information weapons may thus not permit their users to distinguish between military and civilian targets. In the United States, for example, it has been estimated that 95% of the telecommunications of the Department of Defense travel through the Public Switched Network,90 and during the Persian Gulf War, commercial communications satellites reportedly carried almost a quarter of the U.S. Central Command's transcontinental telecommunications.91 Additionally, U.S. military forces are particularly dependent upon non-military systems for deployment and logistics.92 Attacks with military objectives might thus necessarily be directed at predominantly civilian systems, with corresponding injury to the civilians who depend upon them.93 As Vice Admiral Arthur Cebrowski stated in 1995, "There is no logical distinction...between military or civil systems or technologies. [Therefore] there is also no technical distinction between exploitation, attack or defense of the information warfare target set."94
The interdependence and interconnectivity of civilian and military systems may further exacerbate the difficulty in distinguishing among civilian and military targets. Attacks directed at predominantly military targets may cause civilian systems that are connected to those military systems to fail; alternatively, a virus that is directed toward an adversary's military systems may spread, inadvertently or otherwise, into civilian (and even friendly) systems. Furthermore, attacks on systems that would otherwise be legitimate targets may be impermissible because of the danger to civilians that system malfunctions might cause. For example, an attack on a military power facility might pose problems if that facility's failure could release dangerous materials into the atmosphere.95
Spurring Internal Turmoil. Techniques such as video morphing and communications spoofing may make it possible for a country to manipulate the perceptions of its adversary's leaders and populace. The country may spread confusion or disaffection by covertly altering official announcements or news broadcasts, or it may confuse or frighten leaders by spoofing intelligence or other government communications. In principle, these actions would not violate the laws of war.
Taken to the extreme, however, manipulation of news or intelligence in certain cases might be considered the proximate cause of genocide or other atrocities. As Colonel Richard Szafranski has suggested, manipulating an adversary nation to the extent that its citizens or leaders become unhinged from reality, especially when the effects cannot be known or controlled, may be no less wrongful than to force another nation into starvation or cannibalism.96 The potentially dangerous results of perception manipulation are more than theoretical. Some observers believe that "hate radio" contributed to, or even sparked, genocide in Rwanda and the former Yugoslavia. The use of propaganda, "video morphing," or deceptive broadcasts to the extent that they spur unrestrained civil war, or even genocide, may thus be illegal.97
Perfidy. Although ruses are unquestionably permissible in war, not all acts of deception are. Certain acts of treachery or "perfidy" are forbidden by longstanding customary law and by several conventions. While ruses (such as the threatened U.S. Marine landing in Kuwait during the Persian Gulf War) are acts planned to mislead an enemy, as by causing him to become reckless or choose a particular course of action, perfidious acts are designed to convince the enemy that the actor is entitled to protected status under the law of war, with the intent of betraying that confidence.98 Perfidious acts include feigning a truce or surrender, injury or incapacitation, civilian status, or other protected status, such as that of UN or neutral forces, for purposes of attacking the enemy.99 Similarly, attacking while wearing the enemy's uniform is prohibited.100
Information warfare attacks that involve distorting enemy perceptions may be limited by prohibitions against perfidy. For example, manipulating enemy visual, sensing, or other information systems so that enemy forces wrongly believe that U.S. troops are surrendering would certainly seem perfidious, as would causing them to believe that U.S. combat vehicles were medical vehicles or those of neutrals. Similarly, manipulating an enemy's targeting database so that it believed that a U.S. division headquarters was a hospital would be wrong.101 Less obviously, manipulating identification signals so that a nation's forces believe that the enemy personnel or vehicles that are approaching are actually friendly forces would arguably come under the norm underlying the prohibition against attacking while wearing enemy uniforms. On the other hand, because of the longstanding view that communications may be disrupted, and because, unlike uniforms, information systems are in no way required by the laws of war but are rather combat aids, such tactics might seem less treacherous than would taking advantage of the requirement that troops wear distinct uniforms to set themselves off from their foes and civilians.
Definitions and Prohibitions. A side-effect of technological change is that the new activities that it enables may not fit within established legal categories. For example, aerial surveillance has historically been restricted by the sovereignty of each state over its airspace. The development of satellite and space technology in the 1950s later enabled surveillance from orbit. Although such orbital surveillance was functionally the same as aerial surveillance, international law has chosen to consider it as a distinct activity, subject to the universal freedom of actions in space. This characterization was not obvious or required by contemporary understandings of international law; more likely, most countries who wanted to apply traditional understandings of sovereignty to orbital surveillance, such as several African states, lacked the capacity to do anything about it.102 A fundamental threshold question that arises from the development of information warfare techniques is thus the definitional one. Has the development of information warfare technology and techniques taken information warfare out of the existing legal definition of war? Simply, it is not obvious that all information warfare attacks, including some that would inflict serious hardship upon their targets, are what has previously been included within our understanding of "war."103 Similarly, the "damage" that such attacks would inflict, particularly upon civilians, may not be the sort of hardship that the historical and conventional laws of war were intended to alleviate. Consequently, there may be confusion over what limits may apply to the conduct of information warfare, and when information warfare attacks may be carried out.
War, as we have traditionally understood it, inherently includes armed forces, force, and violence.104 The efforts of the United Nations to pursue a more peaceful world are instructive on this point. Article 2(4) of the UN Charter, for example, forbids the threat or use of force against the territorial integrity or political independence of another state. This prohibition has been applied only to physical force since the drafting of the Charter. Most relevantly, the United States and its allies have understood the provision as not applying to economic coercion, although many questioned that view during the 1973 Arab oil embargo.105 Further, during the drafting of the Charter, when Brazil proposed including "economic measures" with "force," the proposal was rejected by a vote of 26-2.106 Consistently, Article 51 of the Charter recognizes a state's right to use force in self-defense against an "armed attack."107
Although lacking some of the formal legal authority of the Charter, the United Nations General Assembly's declaration defining "aggression" also reveals explicit contemplation of armed forces or military might.108 The declaration defines aggression, which the Security Council is empowered to address,109 as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations."110 The first use of armed force by a state would constitute prima facie evidence of aggression.111 The declaration sets out the following as a non-inclusive list of those acts that would qualify as aggression:
Other legislative practice of the United Nations reinforces the view that "aggression" is limited to the use of force. In 1953 Iran pressed the United Nations for an understanding that any act serving the same ultimate purposes as an armed attack or involving coercion to endanger independence was "aggression," but the United Nations has never adopted that view.114
Further affirming the kinetic view of war is the definition of "attacks" as enunciated in the 1977 Additional Protocol to the Geneva Convention. That document, which the United States has signed but not ratified, embodies much customary international law.115 It defines "attacks" as "acts of violence against the adversary, whether in offense of defense."116 Additionally, the issue of whether an information warfare attack constitutes "armed attack" for purposes of self-defense under the UN Charter is discussed in Part III.
Some forms of attack under the information warfare rubric fit comfortably within the above definitions of war, force, aggression, and attack. For example, the use of precision-guided munitions against a military communications post could certainly constitute war. Although the disruption of a social security system database through the use of a virus or hacking during hostilities could certainly be part of a war, it is less obvious that such attacks would by themselves constitute acts of war, because of their nonlethal, nondestructive (in a direct, physical sense), non-physically intrusive character.
On the other hand, it is certain that a state of "war" can exist in the absence of what we have traditionally understood as fighting. Wars do not always end simultaneously with the cessation of combat; rather they generally may require some sort of closure, both for international and domestic legal purposes.117 For example, the United States did not give up its status as a belligerent in World War I until 1921, even though fighting ceased in 1918;118 World War II did not end for several countries until well after 1945; and Israel and its Arab foes have endured years of largely combatless war. Conversely, although formal declarations of war are virtually nonexistent in the modern era, nations could certainly declare war on each other without actually engaging in battle.
Where the applicability of a principle of law is not immediately ascertainable, it is often helpful to examine the intent underlying that legal principle or statute. Unfortunately, that intent is insufficiently instructive.
The fundamental document of the modern international legal system is the Charter of the United Nations, which was signed in San Francisco in 1945. According to the Charter's Preamble, the aim of the United Nations' founders was, in relevant part, "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind."119 To pursue those ends, the founders resolved to:
The stated purposes of the United Nations are:
Members of the United Nations, and the organization itself, are pledged to act in accordance with the following relevant principles:
The UN General Assembly has set out its interpretations of nations' obligations under the Charter. The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations opposes all forms of coercion, including economic pressure against a state "to obtain from it the subordination of the exercise of its sovereign rights."126 In a similar vein, the General Assembly also set out a Declaration on the Inadmissibility of Intervention into the Domestic Affairs of States, which included similar language against the subordination of sovereign rights, and asserted:
The problem in using the fundamental principles laid out in these declarations as tools in interpreting whether the prohibitions on the use of armed force would apply to certain forms of information warfare is that to do so would be to rely upon reasoning that is either circular or demonstrably unrealistic. For example, the UN Charter language about the "scourge of war," "threats to the peace," "respect for...international law," preventing the use of "armed force," settlement of international disputes through "peaceful means," and refraining "from the threat or use of force" is only relevant to nonlethal information warfare attacks if we have already established that the information warfare attacks are, indeed, "war," "force," "unpeaceful means," or whatever other term would apply to something we would be trying to forbid. Similarly, the Friendly Relations declaration's prohibition of the use of coercion to force the subordination of the exercise of a state's "sovereign rights" applies only to the extent that we have determined that the information warfare attack violates those sovereign rights, which are nowhere defined. To read the provision otherwise would be to forbid diplomacy or other forms of inducements.128
Finally, the declaration on intervention does not really define intervention, and in any event, does not equate nonmilitary intervention with aggression or the use of force, thus leaving room for attackers to defend their conduct. Indisputably, although virtually all states purport to recognize the norm of nonintervention, intervention of various kinds occurs frequently, without constituting aggression or war. The declaration thus leaves us with no principled way to place information attacks along a continuum of intervention stretching from a nation's leader publicly meeting with one candidate in a neighboring country's election, to funding of foreign political parties, to bribing government officials, to arming dissidents, to bombing military or police installations.129
Reliance upon exhortations to cooperative or friendly behavior as aids in interpreting the applicability of the prohibitions on the use of force to information warfare would also require circular reasoning and disregard actual state practice, which is itself a source of international law.130 None of these documents mandates a unified, consistently harmonious world. Because the United Nations was established to promote the peaceful resolution of conflict, it implicitly assumes that conflict will arise, and that nations will use various means to resolve them. Information warfare techniques are thus inappropriate to resolve conflicts only if it is determined that they are not peaceful means, the very determination the provisions should help us to make.
The Ability of States to Hurt Each Other. It is important to remember that merely because a government action weakens another country's military forces or hurts its people, does not make that action an act of war, aggression, or force. Longstanding international practice recognizes that nations may inflict great hardship upon each other and their respective citizenries without such infliction constituting the use of force or a violation of international law. In the absence of any international agreement, nations have no underlying legal obligation to deal with each other.131 A government may thus legally withhold a resource, such as fuel, food, or even medicine, without which the population of another nation might suffer severely. A country may even pressure others not to deal with a third country.132
Economic boycotts, embargoes, and other sanctions have been common tools of international coercion in the twentieth century, especially after World War II. Countries of virtually all political persuasions have tried to use the infliction of hardship as a way to convince governments to amend policies.133 For example, in 1908 the Ottoman Empire boycotted all goods from Austria-Hungary in response to that nation's annexation of Bosnia and Herzegovina.134 In 1948, the Council for Mutual Economic Assistance (COMECON) imposed a boycott on trade with Yugoslavia after the rift between Marshals Stalin and Tito.135 The United States and United Kingdom organized an international boycott of Iranian oil after the short-lived government of Mohammed Mossedegh nationalized Iran's oil industry in 1951.136 Finally, in the decades following the 1948 Arab-Israeli war, the Arab League instituted primary, secondary, and tertiary boycotts against Israel, against companies that did business with Israel, and against companies that did business with companies that did business with Israel.137
Similarly, where it has not internationalized a canal, the country through which a canal travels may close that waterway to other nations, even when doing so would hurt those who depend upon the shipping that must travel through it.138 Furthermore, states have routinely practiced "dirty tricks" against each other, ranging from economic espionage to sabotage of exports and imports and beyond, with few, if any international legal repercussions.139
The Significance of Armed Force. Comparison of information warfare attacks and naval blockades may be instructive for understanding the possible place of information warfare under international law. As discussed above, it is not obvious whether nonlethal attacks that are neither physically intrusive nor physically destructive would constitute acts of "war," "force," or "aggression." Naval blockades, in contrast, are recognized as forceful and potentially aggressive acts, even though some effective blockades may be nonviolent, as ships either avoid the blockaded ports or are diverted peacefully.
The effects of naval blockades and information warfare attacks can be similar. Naval blockades prevent the transport of people and products into the target country or area, and may paralyze an economy. In the past, where intercontinental communication was largely by ship, a blockade would keep out information as well. An information warfare attack may also make transport of people and products impossible, paralyzing an economy, and it too may block the spread of information (especially as in an "infoblockade").
The primary distinctions then between a naval blockade and some information attacks might be that the blockade is executed by military forces and includes the threat (or actual use) of physical military force, while the information warfare attack may be executed by military or civilian personnel and contains no physical component or threat. The relevance of these distinctions will be significant for the treatment of information warfare under international law.
In sum, international law seems to draw a strong distinction between traditional, kinetic force and the infliction of hardship or suffering on a government or population. Without getting overly philosophical about the meaning of "violence," the experience of the United Nations and United States in Iraq is instructive. The United Nations has enforced an embargo against Iraq since 1990, with reportedly devastating effects on the Iraqi population and economy. During that time period, the armed forces of UN members, mostly the United States, have taken military action on several occasions, but only in response to specific perceived Iraqi provocations, such as the planned assassination of former U.S. President George Bush or the launching of missiles at U.S. planes enforcing a no-fly zone. If this distinction between the use of physical force and the infliction of hardship is legally valid, nonviolent information attacks may not be considered to be "war," and thus might not be subject to the legal constraints that govern warfare.
The issue of how to categorize information warfare attacks is of more than academic interest. First, whether or not an information warfare attack can be considered an act of "war," "force," or "aggression" is relevant to whether a forceful response can be justified as self-defense, as well as to the issue of whether a particular response would be proportionate to the original attack.140 Conversely, whether an information warfare attack can be considered the use of force goes to the attack's legality as a coercive measure in "peacetime." If a computer or communications intrusion or manipulation is considered the use of force (as in, say, a naval blockade or the bombing of a radar facility), then it could be an illegitimate tool of international coercion. But if it is the rough equivalent of, say, trade sanctions, then it might be appropriate in a peaceful context. Additionally, characterization of an action as "war" would affect the rights and responsibilities of nations that are neutral in the ongoing conflict.
Finally, characterization of attacks and the damage they cause is relevant to the status of those attacks under international humanitarian law, specifically those provisions that protect noncombatants from attacks and the consequences thereof. First, if an information warfare attack is not considered to be an act of "war," then humanitarian law may not apply; the attack could be considered to be equivalent to such measures as closing a canal, or refusing to trade, the sort of act that nations appear to have the legal right to commit. Second, as discussed earlier, it is not settled that the non-physical or indirect damage that some information warfare attacks could cause are the sort of effects against which humanitarian law protects noncombatants. If humanitarian law does not apply, then countries may legally pursue information warfare without (legal) concern for the harm that civilians might suffer.
Difficulty in characterizing certain forms of information warfare as "force," "war," or "aggression" under international law does not mean that international legal institutions cannot respond to such attacks, though. For example, Chapter VII of the UN Charter gives the UN Security Council the authority and responsibility to determine the existence of any "threat to the peace" or acts of aggression,141 and the Council can recommend and lead responses thereto.142 Many information attacks that may not constitute "force" or "aggression" could certainly be considered threats to the peace and thus subject to Security Council action, perhaps including the use of military force. After all, anything that would anger a government to the point that it might feel the need to resort to military action could thus "threaten" the peace, even if the provocative action was not technically illegal. Nevertheless, because any Security Council action would be subject to international political negotiation and maneuvering, as well as a veto by one of the permanent members of the Council, such a response would likely not be quick, sure, or a significant deterrent to a state or non-state entity that was considering an attack, nor might it provide solace to the attack's target.
| Index | Acknowledgments | Preface | Executive Summary | Chapter 1 | Chapter 2 | Chapter 3 | Chapter 4 | About the Authors | Endnotes |