COMPUTER NETWORK ATTACK AND THE USE OF FORCE IN INTERNATIONAL LAW THOUGHTS ON A NORMATIVE FRAMEWORK MICHAEL N SCHMITT June 1999 Research Publication 1 Information Series Approved for public release Distribution unlimited Form Approved OMB No 0704-0188 Report Documentation Page Public reporting burden for the collection of information is estimated to average 1 hour per response including the time for reviewing instructions searching existing data sources gathering and maintaining the data needed and completing and reviewing the collection of information Send comments regarding this burden estimate or any other aspect of this collection of information including suggestions for reducing this burden to Washington Headquarters Services Directorate for Information Operations and Reports 1215 Jefferson Davis Highway Suite 1204 Arlington VA 22202-4302 Respondents should be aware that notwithstanding any other provision of law no person shall be subject to a penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number 1 REPORT DATE 3 DATES COVERED 2 REPORT TYPE JUN 1999 00-00-1999 to 00-00-1999 4 TITLE AND SUBTITLE 5a CONTRACT NUMBER Computer Network Attack and the Use of Force in International Law Thoughts on a Normative Framework 5b GRANT NUMBER 5c PROGRAM ELEMENT NUMBER 6 AUTHOR S 5d PROJECT NUMBER 5e TASK NUMBER 5f WORK UNIT NUMBER 7 PERFORMING ORGANIZATION NAME S AND ADDRESS ES 8 PERFORMING ORGANIZATION REPORT NUMBER HQ USAFA DFPS Institute for Information Technology Applications 2354 Fairchild Drive Suite 6L16D USAF Academy CO 80840-6258 9 SPONSORING MONITORING AGENCY NAME S AND ADDRESS ES 10 SPONSOR MONITOR'S ACRONYM S 11 SPONSOR MONITOR'S REPORT NUMBER S 12 DISTRIBUTION AVAILABILITY STATEMENT Approved for public release distribution unlimited 13 SUPPLEMENTARY NOTES 14 ABSTRACT This Article 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 Article proposes an alternative normative framework based on scrutiny of the consequences caused by such operations 15 SUBJECT TERMS 16 SECURITY CLASSIFICATION OF a REPORT b ABSTRACT c THIS PAGE unclassified unclassified unclassified 17 LIMITATION OF ABSTRACT 18 NUMBER OF PAGES Same as Report SAR 41 19a NAME OF RESPONSIBLE PERSON Standard Form 298 Rev 8-98 Prescribed by ANSI Std Z39-18 ABOUT THE AUTHOR Michael N Schmitt is Professor of International law George C Marshall European Center for Security Studies A retired Air Force Judge Advocate he has previously served on the faculties of the United States Air Force Academy and Naval War College and has been a Visiting Scholar at Yale Law School While on active duty Professor Schmitt held a variety of operational assignments including Staff Judge Advocate for Operations NORTHERN WATCH and PROVIDE COMFORT air component He is editor of the Law of Military Operations Levie on the Law of War and The Law of War Into the Next Millennium and has authored many articles within the United States and abroad on international law and military operations This article also appears in The Columbia Journal of Transnational Law Volume 37 1999 pages 885-937 The views expressed in this paper are those of the author and do not necessarily reflect the official policy or position of the Institute of Information Technology Application the Department of the Air Force the Department of Defense of the U S Government About the Institute The Institute for Information Technology Applications IITA was formed in 1998 to provide a means to research and investigate new applications of information technology The Institute encourages research in education and applications of the technology to Air Force problems that have a policy management or military importance Research grants enhance professional development of researchers by providing opportunities to work on actual problems and to develop a professional network Sponsorship for the Institute is provided by the Secretary of the Air Force for Acquisition the Air Force Office of Scientific Research and the Dean of Faculty at the U S Air Force Academy IITA coordinates a multidisciplinary approach to research that incorporates a wide variety of skills with cost-effective methods to achieve significant results Proposals from the military and academic communities may be submitted at any time since awards are made on a rolling basis Researchers have access to a highly flexible laboratory with broad bandwidth and diverse computing platforms To explore multifaceted topics the Institute hosts single-theme conferences to encourage debate and discussion on issues facing the academic and military components of the nation More narrowly focused workshops encourage policy discussion and potential solutions IITA distributes conference proceedings and other publications nation-wide to those interested or affected by the subject matter 2 ABSTRACT This Article 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 Article proposes an alternative normative framework based on scrutiny of the consequences caused by such operations 3 TABLE OF CONTENTS About the Author 2 About the Institute for Information Technology Applications 2 Abstract 3 Introduction 4 I Understanding Computer Network Attack 6 II Computer Network Attack as a Use of Force 10 III Responding to Computer Network Attacks with Force 22 IV Concluding Thoughts on the Appropriate Normative Framework 27 Endnotes 32 4 Computer Network Attack and the Use of Force in International Law Thoughts on a Normative Framework INTRODUCTION As the next millennium approaches the global community's dependence on computers and the networks that connect them such as the Internet is growing exponentially This dependency amounts to a significant vulnerability for computer networks underlie key societal functions as diverse as finance military command and control medical treatment and transportation Great attention is already being placed on the methods and means by which computer network attacks CNA might be conducted and significant resources are being devoted to developing offensive and defensive CNA capabilities This Article 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 selfdefense 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 Article proposes an alternative normative framework based on scrutiny of the consequences caused by such operations By contrast the Chapter VII security regime is assessed as sufficiently flexible to adapt to the new threats represented by CNA Finally the Article argues for a rather restricted understanding of the right to selfdefense suggesting that it be limited to operations which are de facto armed attacks or imminently preparatory thereto The net result is a limitation on both state resort to CNA techniques which might threaten global stability and on individual responses which might themselves prove destabilizing The global community is fast becoming wired By the beginning of the next millennium some 100 million individuals will enjoy access to the Internet 1 Indeed over the past decade the number of users has almost doubled annually 2 Today students attend virtual universities continents away from their computer terminals shoppers buy on-line from their living room and lawyers perform complex legal research without ever opening a law book More significantly the use of computers and the networks that link them to one another has become far more than a matter of mere convenience--in some cases survival may be at stake International air traffic control relies on linked computer nets as do such diverse and critical functions as telephone operations emergency response medical record management oil distribution municipal sewage treatment electrical generation and railway switching Military reliance on computers has grown in lock-step fashion with reliance on computers in the civilian sector Today the United States Department of Defense DOD employs well over two million computers and operates more than ten thousand local area networks Moreover some two hundred command centers are computer-dependent These figures do not account for the two million plus computer users that regularly do business with the DOD 3 While the armed forces of other nations are less dependent on computer resources and connectivity than those of the United States the trend towards 5 military computerization with varying degrees of fervor approaches universality After all the 1990-1991 Gulf War aptly demonstrated the determinative effect of technology particularly computer-enabled logistics communications intelligence and force application on the modern battlefield It was a lesson lost on few military thinkers or operators 4 Paradoxically most capabilities carry within them the seeds of vulnerability a truism well-illustrated by the new cyber dependencies both civilian and military Whether quantitative or qualitative in nature the extraordinary advances made possible by breakthroughs in computer technology represent dangerous vulnerabilities exploitable by opponents ranging from economic political and military competitors to terrorists and criminals These threat sources are familiar However the unique nature of the cyber threats they pose differs in four interrelated ways from those traditionally faced First computer networks comprise a new target category It is no longer necessary for example to physically destroy electrical generation facilities to cut power to a foe's command and control system instead the computer network that drives the distribution system can be brought down to accomplish the same result Second whereas the means of attack in centuries past usually presupposed the use of kinetic force in the twenty-first century an attack may be nothing more than the transfer of cyber commands from one computer to others Third while the result of a cyber attack may be physical destruction such as the meltdown of a nuclear reactor following interference with its control systems it need not be The objective may simply be to shut off a particular service or function e g disrupting telecommunications or to alter or misdirect data e g unauthorized electronic funds transfer or transmittal of false intelligence information Finally cyber attacks stretch traditional notions of territorial integrity In most cases they will not involve the crossing of political borders by any tangible instrument of the attacker such as military forces equipment or projectiles 5 This article explores the jus ad bellum implications of one such cyber threat-- computer network attack --in a state-on-state context Computer network attack consists of o perations to disrupt deny degrade or destroy information resident in computers and computer networks or the computers and networks themselves 6 After briefly setting forth the technical and doctrinal framework for CNA analysis will turn to the issue this new potential technique of international coercion poses When does a computer network attack conducted by or on behalf of a state constitute a wrongful use of force under international law Though it is not the focus of this essay a brief discussion of the responses available to a state victimized by CNA will follow Such issues arise in two scenarios In the first State A conducts CNA operations against State B with no intention of ever escalating the conflict to the level of armed engagement The advantages gained through the CNA are ends in themselves In the second scenario State A conducts CNA operations in order to prepare the battle space for a conventional attack The goal is to disorient disrupt blind or mislead State B so as to enhance the likelihood that conventional military operations will prove successful Although not limited to the security scheme set forth in the United Nations Charter analytical emphasis will be placed on the prohibition on the use or threat of force in Article 2 4 Chapter VII's authorization of community responses in the face of aggression and the right to self-defense codified in Article 51 The intent is to survey the existing normative architecture for prescriptive fault lines those points where the jus ad bellum as understood in prevailing cognitive paradigms fails to adequately 6 safeguard and foster shared global values 7 To the extent such fault lines are identified suggestions as to how either causative normative lacunae might best be filled or cognitive paradigms might profitably shift will be offered for consideration The Article will conclude with tentative thoughts on the policy implications of differing approaches to addressing the fault I Understanding Computer Network Attack Computer network attack is but one form of a relatively new category of warfare information operations IO 8 Information operations comprise a ctions taken to affect adversary information and information systems while defending one's own information and information systems 9 The term must be understood very expansively For instance the United States military defines information as facts data or instructions in any medium or form and an information system as the entire infrastructure organization personnel and components that collect process store transmit display disseminate and act on information 10 Thus information operations would encompass among an array of other activities virtually any nonconsensual actions intended to discover alter destroy disrupt or transfer data stored in a computer manipulated by a computer or transmitted through a computer network To the extent these operations whether occurring during times of peace or armed conflict intend interference with a country's national defense by targeting defense premises or resources including human and natural resources they constitute sabotage 11 It should also be noted that the term information warfare IW is often incorrectly used as a synonym for information operations In fact IW accurately refers only to those information operations conducted during times of crisis or conflict intended to effect specific results against a particular opponent 12 Thus IW would not include information operations occurring during peacetime As suggested IO is subdivided into defensive and offensive information operations 13 CNA lies within the latter grouping together with such varied activities as military deception 14 psychological operations 15 electronic warfare 16 physical attack and special information operations 17 Its defining aspect is that it operates on data existing in computers or computer networks That being so computer network attack cuts across many categories of offensive IO--its intended result for instance might be deception or psychological effect It is a technique rather than a particular genre of objective CNA operations can be used to facilitate strategic operational and tactical ends 18 Further because physical destruction seldom results from CNA decision-makers find it a particularly attractive option in situations short of armed conflict 19 CNA techniques vary widely Perhaps best known is the transmission of computer viruses into an adversary's computer network to destroy or alter data and programs Logic bombs can also be introduced that sit idle in a system awaiting activation at the occurrence of a particular event or set time A logic bomb might be set to explode upon the call-up of reserve forces Other techniques for disrupting information systems range from simply flooding it with false information to using sniffer programs to collect access codes that allow entry into a targeted system In some cases such attacks may occur without revealing the source or even the fact of the attack In others the identity of the attacker might be spoofed so as to convince the victim that the attack originated elsewhere 7 Hypothetical examples of CNA some realistic others stretching credulity abound in the literature Consider just a few 1 Trains are misrouted and crash after the computer systems controlling them are maliciously manipulated 20 2 An information blockade is mounted to limit the flow of electronic information into or out of a target state 21 3 Banking computer systems are broken into and their databases corrupted 22 4 An automated municipal traffic control system is compromised thereby causing massive traffic jams and frustrating responses by emergency fire medical and law enforcement vehicles 23 5 Intrusion into the computer system controlling water distribution allows the intruder to rapidly open and close valves This creates a hammer effect that eventually causes widespread pipe ruptures 24 6 A logic bomb set to activate upon initiation of mass casualty operations is imbedded in a municipal emergency response computer system Lest such scenarios seem implausible computer networks have already proven remarkably vulnerable For instance the Defense Information Systems Agency DISA identified fifty-three attacks on military and DOD systems in 1992 By 1995 that number had grown to 559 and an astonishing fourteen thousand incidents are anticipated in 1999 In addition DISA estimates that only one attack in 150 is detected 25 In what is perhaps the best known incident two hackers penetrated the Air Force's Rome Laboratory in 1994 by using software that allowed them to appear legitimate The intruders entered the system over 150 times established links with foreign Internet sites copied sensitive data and attacked other linked government facilities and defense contractor systems 26 Particularly problematic is the fact that the source of the vulnerability is the very interconnectedness that renders networks so powerful Most significantly interconnectivity exacerbates the consequences of CNA due to the likelihood of reverberating effects An incident in 1996 illustrates how this phenomenon can occur When a single power line in Oregon short-circuited other power lines were forced to assume its load Unable to cope with the increased demand they too became overloaded and were shut down The situation continued to snowball By the time it was brought under control a power blackout had spread to portions of fifteen states as well as parts of Canada and Mexico 27 Although not the product of a computer network attack an identical result could easily have been caused by one The danger is that interrelationships cut across critical components of the national infrastructure The Office of Science and Technology Policy likening it to Mrs O'Leary's cow and the Great Chicago Fire highlighted this dilemma in an assessment of infrastructure vulnerability The public telephone network for example relies on the power grid the power grid on transportation and all the sectors on telecommunications and the financial structure Most of today's cybernetic networks are actually combinations of networks interconnected and interdependent Interactions among these subsystems are critical to overall network performance indeed they are the essence of network performance Because the system also interacts with the real world environment the 8 interactions among subsystems are not necessarily predictable and sequential like the steps of an assembly process but can be essentially random unsynchronized and even unanticipated 28 Obviously this complex national infrastructure web contains within it the likeliest CNA targets both because of its national import and because it offers an opponent countless avenues of attack Our energy communications industrial financial transportation human services and defense systems are brimming with computer dependencies 29 Predictive efforts centering on potential targets and the methods that might be used to attack them lie at the core of defensive planning and offensive brainstorming Although such labors at times approximate random speculation consider a representative attempt in the form of a notional list of the Top 10 Information Warfare targets 1 Culpeper Virginia electronic switch which handles all Federal funds and transactions 2 Alaska pipeline which currently carries 10 percent of all U S domestic oil 3 Electronic switching system which manages all telephones 4 Internet 5 Time distribution system 6 Panama Canal 7 Worldwide Military Command and Control System WMCSS 8 Air Force satellite control network 9 Strait of Malacca the major maritime link between Europe-Arabian Peninsula and the Western Pacific and East Asia 10 National Photographic Interpretation Center Washington 30 Of course these are information warfare targets designed to enhance an attacker's relative military position in times of crisis or conflict Target sets would certainly differ for CNA conducted as part of a peacetime operation not intended to prepare the battle space for future conflict However the list illustrates specific examples of targets that serious thinkers have contemplated Actual targets would of course depend on the overall political-military objective sought by the attacking state The emerging information age generates new vulnerabilities that are likely to be exploited Opponents of developed first-world states cannot hope to prevail on the battlefield or even in the boardroom The technological and fiscal wherewithal of the developed states underlies an unprecedented level of military and economic supremacy Moreover as between these preeminent states primarily the United States its NATO allies and Japan the likelihood of armed conflict is de minimus Thus opponents of any particular state cannot hope to turn to a peer competitor of that state for support Facing these realities a lesser-advantaged state hoping to seriously harm a dominant adversary must inevitably compete asymmetrically It must seek to counter the strengths of the opponent not head-on but rather circuitously employing unorthodox means to strike at centers of gravity For instance possession of weapons of mass destruction WMD can offset conventional military weakness This is precisely why the United Nations Security Council takes the UNSCOM effort to deprive Iraq of WMD so seriously Iraq cannot possibly hope to successfully confront the U S and its allies on the battlefield but a credible threat to employ chemical or biological weapons in pursuit of national objectives would give it disproportionate and malevolent influence on the world scene Similarly asymmetry also under girds most state or state-sponsored 9 terrorism It presents a relatively inexpensive means of striking a superior opponent in a very visible yet relatively cost-free manner 31 CNA offers analogous asymmetrical benefits In the first place and as will be explored infra in many cases a computer network attack will either not merit a response involving the use of force or the legality of such a response will be debatable even if the victim is able to accurately identify the fact much less the source of attack Thus because of the potentially grave impact of CNA on a state's infrastructure it can prove a high gain low risk option for a state outclassed militarily or economically Moreover to the extent that an opponent is militarily and economically advantaged it is probably technologicallydependent and therefore teeming with tempting CNA targets To further complicate matters the knowledge and equipment necessary to mount a computer network attack are widely available CNA is quite literally war on the cheap One expert has asserted that with one million dollars and twenty individuals he can bring the U S to its knees 32 Another maintains that the defense information infrastructure DII can be disrupted for weeks by ten individuals with $10 000 while still others claim that for $30 000 000 one hundred individuals could so corrupt the country's entire information infrastructure that recovery would take years 33 To place these figures into context a single F-16 aircraft cost $26 000 000 in fiscal year 1997 34 Unfortunately the ability to conduct such operations is widespread The President's Commission on Critical Infrastructure Protection has projected that by the year 2002 some nineteen million individuals will have the know-how to launch cyber attacks 35 Today over 120 countries are in the process of establishing information operations competence 36 In particular the Chinese have discovered information warfare and organized research in the subject proceeds apace 37 So too not surprisingly has the United States Each of the armed services as well as the Central Intelligence Agency currently operates an information operations center 38 The centrality of information assets to national security and therefore the need to safeguard them from CNA cannot be overstated a point well-recognized in official doctrine The U S National Security Strategy for 1997 states that The national security posture of the United States is increasingly dependent on our information infrastructures These infrastructures are highly interdependent and are increasingly vulnerable to tampering and exploitation Concepts and technologies are being developed and employed to protect and defend against these vulnerabilities we must fully implement them to ensure the future security of not only our national information infrastructures but our nation as well 39 Similarly the most recently published National Military Strategy provides Success in any operation depends on our ability to quickly and accurately integrate critical information and deny the same to an adversary We must attain information superiority through the conduct of both offensive and defensive information operations Superiority in these areas will enable commanders to contend with information threats to their forces including attacks which may originate from outside their area of operations It also limits an adversary's freedom of action by disabling his critical information systems 40 10 In light of this centrality jus ad bellum issues loom large The information infrastructure and its multitudinous components comprise an attractive target set and because of the ease with which CNA can be conducted a critical and difficult to defend vulnerability It is to the legal milieu in which such operations might occur that analysis shall now turn II Computer Network Attack as a Use of Force As noted any number of purposes might motivate a state to conduct computer network attacks Perhaps the CNA is designed to lay the groundwork for a subsequent conventional attack Alternatively it may be intended to stand alone to cause damage and disruption without any desire to facilitate latter traditional military operations Regardless of its aim normative evaluation of the actions that occur will center on whether or not the actions constituted a wrongful use of force or threat thereof in violation of international law Article 2 4 of the UN Charter expresses the key prescription in international law regarding the use of force By that provision All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations 41 Purposes of the United Nations expressly cited in the Charter include the maintenance of international peace and security 42 Therefore uses or threats of force which endanger international stability fall within Article 2 4 's prescriptive envelope It is a prohibition reiterated in numerous international instruments both binding and aspirational 43 Lest the provision be misinterpreted it is important to recall that Article 2 4 is prohibitive rather than remedial in nature It does not in and of itself authorize any response to a use or threat of force Rather the Charter delineates the bases for response to the wrongful use of force as will be discussed infra in Chapters VI and VII Article 2 4 merely serves to render particular uses of force wrongful in the Charter scheme Before turning to the specific query of when CNA might violate Article 2 4 it is first necessary to briefly consider the reach of Article 2 4 44 The most significant issue surrounds the seemingly restrictive phrase territorial integrity or political independence or in any other manner inconsistent with the Purposes Are there uses of force not otherwise authorized within the Charter that fall beyond Article 2 4 's gamut because they do not threaten the territorial integrity or political independence of a target state or otherwise violate some specifically articulated prohibition found elsewhere in the Charter Although the precise wording of the article generated much controversy as the Charter was being negotiated 45 the mainstream view among international law experts is that the other manner language extends coverage to virtually any use of force not authorized within the Charter 46 Thus applying the prevailing positivist approach analysis of use of force scenarios proceeds from the premise that an authorization for the use has to be found within the four corners of the Charter not from the postulate that force is permissible unless a specific Charter prohibition thereon applies 47 In the CNA context this understanding would limit the scope of inquiry to whether the operation amounts to a use of force Of course the meaning of force may prove a matter of some dispute as may the precise boundaries of the Charter's use of force sanctions but if a CNA operation constitutes force it will be deemed wrongful unless Charter-based No further analysis is necessary 11 Although textually sound the positivist approach fails to reflect the realities underlying uses of force It evidences misguided fidelity to the failed constitutive endeavor to establish a Charter security schema that would generally dispense with the need for unilateral uses of force except in aberrant situations necessitating immediate selfdefense The envisioned normative architecture presupposed an effective enforcement mechanism--collective response under Security Council control--that has only slowly and somewhat haphazardly begun to be realized in the last decade Absent an authoritative coercive enforcement mechanism strict adherence to the plain text meaning of Article 2 4 can actually operate as a counterpoise to the Charter's world order aspirations Specifically adherence to a textual interpretation of the Charter security regime only allows either collective responses under Security Council mandate or defensive actions During the Cold War the Security Council was rendered impotent by bipolar competition Despite the demise of bipolarity the international community continues to struggle to forge consensus in the face of glaring acts of aggression breaches of peace or threats to peace Inflexible understandings of Article 2 4 's relationship to uses of force risk foreclosing unilateral or multilateral responses to deleterious situations that desperately demand community action but upon which the Security Council has failed to act Fortunately the international community has not allowed itself to be crippled by the relative desuetude of the Charter security system On the contrary in many cases states have responded to situations either individually or in concert in which community interests were served by taking coercive measures not specifically provided for in the Charter Such incidents combine to map out a complex operational code as to those coercive acts the international community or at least the politically relevant members thereof accepts as lawful Over a decade ago Professor Michael Reisman identified nine basic categories of unilateral uses of force which enjoy some degree of community support S elf-defense which has been construed quite broadly selfdetermination and decolonization humanitarian intervention intervention by the military instrument within spheres of influence and critical defense zones treaty-sanctioned interventions within the territory of another State use of the military instrument for the gathering of evidence in international proceedings use of the military instrument to enforce international judgements and counter measures such as reprisals and retorsions 48 The majority of these actions would be difficult to justify under the Charter absent a strained interpretive effort As Professor Reisman notes the categories themselves are not determinative 49 Instead every threat or use of force is evaluated on its own merits based upon the context in which it occurs Thus for example while the operational code acknowledges the lawfulness of humanitarian intervention in certain circumstances in others it might be deemed unlawful--the operational code is contextual Moreover the categories in which uses of force are sometimes considered appropriate evolve New categories such as use of the military in cross border counter-terrorist operations may emerge while shifts in the nature and effectiveness of the Charter security scheme may diminish the acceptability of others such as the unilateral use of the military instrument to gather evidence Many criteria of lawfulness operate synergistically to contribute to the final assessment of legality such as the imminence and severity of the situation being 12 addressed less coercive or less violent alternatives and the viability of community responses Ultimately though such extra-Charter uses of force will fall outside the operational code if they fail to advance shared world order values The point here is not to index the operational code vis-a-vis uses of force but rather to simply highlight the fact that a Charter analysis cannot be performed in isolation of the constantly developing and evolving operational code 50 Article 2 4 continues to enjoy predominant prescriptive valence and it remains appropriate to view the provision as a general prohibition on non-Charter uses of force That said it must be recognized that certain forceful acts that lie outside the narrow options available in the Charter nevertheless comport with the operational code A useful approach may well be to apply a rebuttable presumption to uses of force not specifically consistent with the Charter security system A presumption of unlawfulness would attach to any such use The burden would then shift to the actor to justify its actions within the relevant international community Given this analytical framework the dispositive question is whether CNA constitutes use of force Since the drafting of the UN Charter the reach of the term force has proven contentious The Vienna Convention on the Law of Treaties sets forth the core interpretive principle that international instruments are to be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and scope 51 But what is the plain meaning of the term force Does it only extend to armed force i e force applied by military units or does it encompass other forms of coercion In addressing this issue some commentators point to the Charter itself 52 an approach consistent with the Vienna Convention's inclusion of a treaty's preamble text and annexes in its context 53 For instance the Preamble includes among Charter purposes the goal that armed force not be used save in the common interest If the Article 2 4 prohibition were intended to extend beyond armed force then presumably the preamble for reasons of internal consistency would not have included the term armed After all the Charter's articles are designed to effectuate its preambular aspirations Thus preambular terminology is logically interpreted more broadly than that contained in the articles The wording of Article 44 further supports a restrictive interpretation It states When the Security Council has decided to use force it shall before calling upon a Member not represented to provide armed forces Force appears as in Article 2 4 without the qualifier armed but as demonstrated by the reference to armed forces clearly contemplates that the force used be armed The Charter uses the term armed force twice 54 a fact which might seem to suggest the drafters intended to distinguish it from unqualified force after all However both cases involve Chapter VII enforcement in which armed force is but one of multiple options available to the Security Council in responding to threats to the peace breach of the peace or acts of aggression Read in context they clearly refer to a particular point along the continuum of coercion By contrast because Article 2 4 precludes nothing but force there was no need to distinguish it through qualification While textual analysis is often telling it is based on the somewhat suspect premise that a diverse group of diplomatic teams was thoroughly aware of the subtle nuances of language This is so despite the fact that many members of the teams do not share English or for that matter any language of the other authoritative texts--Chinese French Russian and Spanish as their first language 55 Of course negotiating teams 13 do obsess over terminological precision in order to avoid committing their state to unintended and undesired obligations However should ambiguity or obscurity remain interpretive recourse may be made to the preparatory work of the treaty and circumstances of its conclusion 56 In the case of Article 2 4 the travaux preparatoires57 do shed considerable light on the subject At the San Francisco Conference the Brazilian delegation submitted amendments to the Dumbarton Oaks proposals that would have extended Article 2 4 's range to economic coercion 58 Though the proposition received a majority vote in committee the Conference declined adopting it by a vote of 26-2 59 Thus analysis based on both UN Charter travaux and text leads to an interpretation excluding economic and for that matter political coercion from Article 2 4 's prescriptive sphere Other international instruments of the time also used the term force without qualification 60 In none of them does any support for inclusion of economic or political pressure appear In fact the terminological approach in one of the key constitutive documents of the time implies just the opposite The Charter of the Organization of American States as subsequently amended avoids use of the naked term force altogether instead separately referring to armed force and coercive measures of an economic or political character 61 Its drafters appear to have been sensitive to the normative import of the distinction an unsurprising fact in light of Brazil's membership in the organization 62 In fairness the restrictive interpretation has not enjoyed universal acceptance The desire for a broader definition resurfaced twenty-five years after the San Francisco Conference during the drafting of the General Assembly's Declaration on Friendly Relations The Declaration expresses the use of force prohibition in terms identical to Article 2 4 63 During committee handling of the draft differences of opinion again arose over whether the term force should extend to all forms of pressure including those of a political or economic character which have the effect of threatening the territorial integrity or political independence of any State 64 Most Western States sought to limit the expression to armed force in some cases linking the prohibition to the right to respond in self-defense pursuant to Article 51 of the Charter to an armed attack In contrast the bulk of African and Asian nations advocated a purpose-based interpretive analysis By their reasoning a desire to assure the political independence of States through protection of sovereign prerogative and territorial inviolability permeated Article 2 4 To the extent that economic and political coercion constituted a threat to those principles the article as well as the Declaration should be interpreted to preclude such misdeeds For proponents interpretative endeavors particularly when text is ambiguous should not be foreclosed by travaux but rather should reflect the underlying purposes of the article in the current international context Latin American countries split on the issue Ultimately the debate proved impossible to resolve--the Declaration's Principles and the textual explication thereto do not directly address the differences However much of the explanation of the Principle prohibiting resort to force is cast in terms relevant only to armed force 65 That the Declaration fails to cite economic or political measures in the Principle on the use of force but does so with regard to the Principle imposing a duty not to intervene in matters within the domestic jurisdiction of any State 66 strengthens the restrictive argument Tellingly a second General Assembly Resolution on the subject this one issued in 1987 takes an analogous approach In the Declaration on the 14 Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations armed intervention is tied to interference or attempted threats against the personality of the State or against its political economic and cultural elements whereas economic and political coercion are cited in the context of the subordination of the exercise of sovereign rights and securing advantages of any kind from the target state 67 Again while the Declaration does not definitively resolve the reach of the term force its general tenor and the varying contexts in which armed economic and political coercion arise suggest that although economic and political coercion may constitute threats to international stability and therefore are precluded by the principle of non-intervention discussed infra the concept of the use of force is generally understood to mean armed force 68 The foregoing analysis shows that the prohibition of the threat or use of force includes armed but not economic or political coercion 69 However it does not demonstrate that the borders of force precisely coincide with armed force i e physical or kinetic force applied by conventional weaponry This reality has only recently proven of applicative import Until the advent of information operations most coercion could be handily categorized into one of several boxes for few coercive options existed that could not be typed as political economic or armed in nature Because there was little need to look beyond these genera discourse about the lawfulness of State coercion as illustrated supra tended to revolve around them If the act in question fell within the armed force box it violated the prescription banning the use of force if not questions of legality had to be resolved by looking elsewhere 70 On rare occasions the relatively bright line test for wrongful use of force proved inutile For instance in the Nicaragua Case the International Court of Justice ICJ held that W hile arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua this is not necessarily so in respect of all assistance given by the United States Government In particular the Court considers that the mere supply of funds to the contras while undoubtedly an act of intervention in the internal affairs of Nicaragua does not itself amount to a use of force 71 Assuming the Court accurately characterized the state of the law the dimensions of the armed force box grew slightly In what was tantamount to an application of agency theory the Court determined that force apparently includes actively and directly preparing another to apply armed force but not merely funding the effort Nevertheless despite the subtle shift in the understanding of force prescriptive ratiocination continues to transpire within a familiar paradigm that of distinguishing armed force from other tools of coercion At least since promulgation of the Charter this use of force paradigm has been instrument-based determination of whether or not the standard has been breached depends on the type of the coercive instrument--diplomatic economic or military-- selected to attain the national objectives in question The first two types of instruments might rise to the level of intervention but they do not engage the normatively more flagrant act of using force However despite instrument classing in actual practice it does not follow that coercive acts involving armed force necessarily operate at counterpurposes with community values they are condoned when consistent with the operational code Even when they do it is not always the case that they do greater 15 violence thereto For instance a temporally and spatially limited border incursion is probably a lesser threat to either international peace and security or the right of states to conduct their affairs free from outside interference than was the 1973-1974 Arab oil embargo 72 Yet the prescriptive framework would proscribe the former but not the latter 73 In order to understand the distinction one must first inquire into why the limitation exists at all International law regarding coercion seeks to foster or frustrate consequences Although as noted in the discussion of operational codes normative architectures evolve over time as community aspirations shift in one direction or another certain shared community values albeit often aspirational permeate world order prescription They include inter alia physical survival and security for both individuals and the tangible objects on which they rely human dignity particularly that expressed in human rights norms social progress and quality of life and the right of peoples to shape their own political community 74 In a sense these aspirations echo a human hierarchy of need International law seeks to advance them to a degree largely determined by both their position in the hierarchy of need and the nature of the systemic constraints that the international system imposes on their pursuit The primary constraint the determinative reality is that these aspirations must be pursued within a state-based international structure This structure contains many obstacles not the least of which is interstate rivalry rift with zero-sum thinking 75 The UN Charter reflects this understanding by including in its purposes the maintenance of international peace and security development of friendly relations among nations achievement of international cooperation in solving international problems and harmonization of the actions of nations 76 While these appear to be goals in and of themselves they are actually intermediate goals in the attainment of the ultimate ends just articulated They are community value enablers The prohibition on the use of force is designed to advance these intermediate objectives and occasionally the ultimate aims by restricting those acts most likely to endanger them--uses of force In fact the international community is not directly concerned with the particular coercive instrumentality used force in this case but rather the consequences of its use However it would prove extraordinarily difficult to quantify or qualify consequences in a normatively practical manner Undesirable consequences fall along a continuum but how could the criteria for placement along it be clearly expressed In terms of severity Severity measured by what standard of calculation Harm to whom or what 77 The difficulty in looking to consequences themselves as criteria for calculating lawfulness led the Charter drafters to use prescriptive short-hand to achieve their goals Because force represents a consistently serious menace to intermediate and ultimate objectives the prohibition of resort to it is a relatively reliable instrument-based surrogate for a ban on deleterious consequences It eases the evaluative process by simply asking whether force has been used rather than requiring a far more difficult assessment of the consequences that have resulted Of course the use of force can cause widely divergent results depending on the weapon used scale of attack and nature of the target as can economic coercion which may result in everything from financial uneasiness to the collapse of an economy Nevertheless instrument-based evaluation is merited in the case of the former but not 16 the latter by virtue of its far greater consequence-instrument congruence Armed coercion usually results in some form of physical destruction or injury whereas economic or political coercion seldom does Additionally the risk of an escalating conflict from a use of force ordinarily exceeds the risk from economic or political coercion because force strikes more directly at those community values at the top of the human hierarchy of need in particular survival The fact that the consequences of the use of force are almost immediately apparent whereas economic or political consequences although severe emerge much more slowly and thereby allow opportunity for reflection and resolution compounds the danger of escalation An even more basic problem is pinning down the cause and effect relationship when applying economic and political coercion During the time lag between the initiation of the coercion and the emergence of consequences intervening factors may enter the picture without which the consequences would not have occurred Because the results of applying economic and political instruments generally constitute lesser threats to shared community values the use of force standard serves as a logical break point in categorizing the asperity of particular coercive acts Any imprecision in this prescriptive short-hand is more than outweighed by its clarity and ease of application What matters then are consequences but for a variety of reasons prescriptive shorthand based upon the instrument involved classifies coercive acts into two categories--those the community most abhors force and all others which may in themselves violate less portentous community prescriptions Computer network attack challenges the prevailing paradigm for its consequences cannot easily be placed in a particular area along the community values threat continuum The dilemma lies in the fact that CNA spans the spectrum of consequentiality Its effects freely range from mere inconvenience e g shutting down an academic network temporarily to physical destruction e g as in creating a hammering phenomenon in oil pipelines so as to cause them to burst to death e g shutting down power to a hospital with no back-up generators It can affect economic social mental and physical well-being either directly or indirectly and its potential scope grows almost daily being capable of targeting everything from individual persons or objects to entire societies Note that Article 41 of the Charter cites interruption of communication as a measure not involving armed force 78 Certainly some forms of computer network attack would fall in the ambit of this characterization However many forms would not More to the point the Charter drafters did not contemplate CNA Therefore to reason that CNA is a measure not involving armed force by virtue of Article 41 is overreaching So how should computer network attack best be characterized As a use of armed force As force As some nascent modality of inter-State coercion which exists in a normative void One narrow category of computer network attack is easily dealt with CNA specifically intended to directly cause physical damage to tangible property or injury or death to human beings is reasonably characterized as a use of armed force and therefore encompassed in the prohibition Thus in the examples above the pipeline destruction and the shutting of power to the hospital are examples of CNA which the actor knows can and intends to directly cause destruction and serious injury Armed coercion is not defined by whether or not kinetic energy is employed or released but rather by the nature of the direct results caused specifically physical damage and human injury 17 Instrumentalities that produce them are weapons There is little debate about whether the use of chemicals or biologicals falls within the meaning of armed force even though the means that cause the injury or death differ greatly from those produced by kinetic force 79 Similarly there was little doubt that neutron bombs constitute weapons nor has controversy over the classification as weapons of the new varieties of non-lethals many of which do not release kinetic energy as a mode of effect surfaced 80 That computer network attack employs electrons to cause a result from which destruction or injury directly ensues is simply not relevant to characterization as armed force The dilemma lies beyond this limited category of computer network attacks How should computer network attacks which do not cause physical damage or injury or do so indirectly be classed vis-a-vis the prohibition on the use of force Unless the international community is willing to adopt a de novo scheme for assessing the use of inter-state coercion any justification or condemnation of CNA must be cast in terms of the use of force paradigm In that computer network attack cuts across the instrument-based distinction employed as prescriptive short-hand it becomes necessary to shift cognitive approach if one wishes to continue to operate within the existing framework The key to doing so lies in revisiting the force box As the discussion has illustrated the controversy surrounding the meaning of the term was not so much whether the concept was limited to armed force but rather whether it included economic coercion To the extent that the qualifier armed was cited it was done in order to counter the argument for extension There was no need to look beyond armed force because intermediate forms of coercion such as CNA were not generally contemplated Yet the holding of the ICJ in the Nicaragua Case with regard to arming and training the contras suggested that other forms of force were not necessarily excluded Therefore the use of force line must lie somewhere between economic coercion and the use of armed force The question becomes how to locate the point of demarcation at least with regard to this new genre of coercion Perhaps the best approach is to start by reflecting upon the underlying motivation for the instrument-based distinctions consequences This is an imprecise endeavor for as discussed the instruments do not precisely track the threats to shared values which ideally the international community would seek to deter Nevertheless if commonalities between typical consequences for each category can be articulated perhaps CNA can be classed according to consequence affinity with the current prescriptive distinguishers Economic and political coercion can be delimited from the use of armed force by reference to various criteria The following number among the most determinative 1 Severity Armed attacks threaten physical injury or destruction of property to a much greater degree than other forms of coercion Physical well-being usually occupies the apex of the human hierarchy of need 2 Immediacy The negative consequences of armed coercion or threat thereof usually occur with great immediacy while those of other forms of coercion develop more slowly Thus the opportunity for the target state or the international community to seek peaceful accommodation is hampered in the former case 3 Directness The consequences of armed coercion are more directly tied to the actus reus than in other forms of coercion which often depend on numerous contributory factors to operate Thus the prohibition on force precludes negative consequences with greater certainty 18 4 Invasiveness In armed coercion the act causing the harm usually crosses into the target state whereas in economic warfare the acts generally occur beyond the target's borders As a result even though armed and economic acts may have roughly similar consequences the former represents a greater intrusion on the rights of the target state and therefore is more likely to disrupt international stability 5 Measurability While the consequences of armed coercion are usually easy to ascertain e g a certain level of destruction the actual negative consequences of other forms of coercion are harder to measure This fact renders the appropriateness of community condemnation and the degree of vehemence contained therein less suspect in the case of armed force 6 Presumptive Legitimacy In most cases whether under domestic or international law the application of violence is deemed illegitimate absent some specific exception such as self-defense The cognitive approach is prohibitory By contrast most other forms of coercion--again in the domestic and international sphere--are presumptively lawful absent a prohibition to the contrary The cognitive approach is permissive Thus the consequences of armed coercion are presumptively impermissible whereas those of other coercive acts are not as a very generalized rule These consequence commonalities can serve as the ties between CNA and the prevailing instrument-based prescriptive shorthand 81 By this scheme one measures the consequences of a computer network attack against the commonalities to ascertain whether they more closely approximate consequences of the sort characterizing armed force or whether they are better placed outside the use of force boundary This technique allows the force box to expand to fill lacunae that became apparent upon the emergence of coercive possibilities enabled by technological advances without altering the balance of the current framework--the growth is cast in terms of the underlying factors driving the existing classifications How might this technique operate In determining whether an opponent's computer network attack or threat thereof fell within the more flexible consequence-based understanding of force or whether an action being considered by one's own information warriors does the nature of the act's reasonably foreseeable consequences would be assessed to determine whether they resemble those of armed coercion If so extension of the use of force prohibition to the act would be justified If not wrongfulness under international law would have to be determined by resort to prescriptive norms other than that prohibiting force Consider two apposite examples In the first case computer network attacks disable a busy air traffic control ATC system during horrendous weather An airliner crashes and deaths result No kinetic force has been used to destroy the airliner but CNA was plainly the proximate cause of the tragedy This action would be considered a use of force The severity of the consequences multiple deaths and physical destruction rises to a level equal to that of armed coercion The technique did not permit sufficient opportunity to defuse the crisis before the consequences occurred and although CNA did not directly target the aircraft's on-board systems the crash would not have occurred but for the attack on the ATC assets Furthermore in order to cause the damage signals had to be transmitted across political borders The consequences of the attack are easily measurable in terms of human and property loss and although attempts to harm others through their computers and computer networks is a relatively new 19 technique there is a growing body of law in many countries criminalizing such activities 82 Contrast this analysis with that addressing an attack on a university computer network designed to disrupt military related research occurring in campus laboratories Severity considered in the context of shared values falls significantly below that of armed coercion No physical damage or measurable suffering occurs at least in the short term The desired outcome diminished capability on the battlefield is remote from the act and it is indirect in that it will depend on a number of indeterminacies--the ability to regenerate data the possible existence of other research efforts moving towards the same conclusions the likelihood the project would have been funded through entry into the inventory etc Although the transmission of the signal is intrusive and presumptively illegitimate metering the consequences will prove difficult In sum the underlying nature of the consequences resulting from this particular information operation fails to sufficiently resemble that characteristic of uses of armed force Extension of the instrument-based use of force distinguisher would be inappropriate It may appear torturous to use the prescriptive shorthand instrument-based classification as a point of departure rather than simply ask to what degree the consequences of computer network attack threaten shared community values One might simply look no further than the severity of consequences 83 Indeed at conferences and among those who have considered the subject in any depth there is a tendency to take this stance when struggling with the dilemma of how to account for non-kinetically based harm with a system designed to regulate kinetic activities The flaw in doing so lies in the fact that it calls for a new normative architecture altogether to handle such actions an architecture that amounts to more than an interpretive dilation of the use of force standard It would constitute a new standard By contrast reference to the instrument-based shorthand facilitates greater internal consistency and predictability within the preexisting framework for inter-state coercion It allows determinations on the inclusivity of the use of force to more closely approximate the current system than analysis based solely on consequentiality would allow As a result subscription by the international community is more likely and application should prove less disruptive and controversial This is not to say that greater focus on core objectives on consequentiality in its pure form is not to be sought It is only a recognition that until the international community casts off its current cognitive approach community values are for practical reasons best advanced in terms of that which is familiar and widely accepted It should be noted that schema-imbuing consequences rather than acts with normative valence are nothing new In the jus in bello consequence-based analysis predominates The principle of proportionality for instance balances positive consequences military advantage against harmful ones collateral damage and incidental injury 84 Additionally Protocol I to the Geneva Conventions prohibits starvation of civilians causation of widespread long-term and severe damage to the environment and attacks on works and installations containing dangerous forces which may cause the release of dangerous forces and consequent severe losses among the civilian population 85 Similarly the Environmental Modification Convention forbids the use of any hostile environmental modification technique that has widespread long-lasting or severe effects 86 20 More to the point consequentiality arguably dominates analysis of inter-state coercion short of the use of force for once an act slips out of the force box into a category containing other coercive methods the issue of the instrument fades in favor of consequences specifically the consequence of intervention in the affairs of other states Of course armed coercion can constitute intervention but the modality of coercion rather than the fact of intervention is determinative By contrast in considering nonforceful coercion the start point is whether it amounts to prohibited intervention For instance the Declaration on the Inadmissibility of Intervention provides that 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 or to secure from it advantages of any kind 87 It is not the fact of economic coercion but rather its consequence that matters Thus while certain techniques may be prohibited by a particular international agreement 88 the encompassing norm is consequence-based Arguably the approach to CNA and the use of force suggested in this essay falls within the camp of radical teleological interpretation for ultimate purposes are being identified in order to lend prescriptive substance to a treaty provision 89 Yet this is not a case of crafting new prescriptions but rather one of simply determining how to address activities not contemplated at the time the Charter was promulgated by resort to Charter norms Clearly had CNA posed a significant threat in 1945 the drafters would have crafted a standard against which it could be prescriptively measured Moreover because the Charter is the constitutive instrument of an international organization flexibility in interpretive spirit is apropos Such documents must remain malleable if the organization in question is to remain relevant to changing international circumstances As one distinguished commentator has noted T his flexible approach has been used as a way of inferring powers not expressly provided for in the relevant instruments which are deemed necessary in the context of the purpose of the organization 90 Finally since the approach is consequence vice instrument based it will forfeit much of the clarity that the latter mode of analysis offered more gray area cases will occur This is particularly true in the absence of state practice and the responses thereto necessary to permit an operational code to emerge from the fog of inter-State relations In assessing individual instances of CNA then the question is how to resolve the unclear cases Should a presumption operate in favor of inclusion or exclusion of CNA in the use of force box While policy concerns may impel a particular state towards one position or the other the security framework of the Charter would be best effected by application of an inclusivity presumption If the debate is about whether a particular information operation is or is not a use of force then the consequences of that operation are likely such that they would be violative of the prohibition on intervention at any rate The issue is probably not legality but rather illegality by what standard Therefore to the extent that treaty prohibitions have any deterrent effect inclusivity would foster shared community values The contrary position would assert that labeling uncertain cases as a use of force would be destabilizing for the victim would be more likely to respond forcefully However as to be discussed it is not the use of force but rather armed attack which gives a state the right to respond in self-defense An operation that generates doubt as to its status under use of force typology would surely not rise to the level of an armed attack Moreover this position does not leave the international community remedy-less Under Article 39 21 the Security Council may mount forceful responses even to events that threaten the peace Most gray area cases would at least rise to this level 91 The prohibition on the use of force enjoys normative valence beyond its Charter context It also constitutes customary international law 92 Customary law has both objective and subjective components it must evidence consistent state practice over time by a meaningful group of states and opinio juris sive necessitatis93 must exist 94 In evaluating the actions of the United States in the Nicaragua case the International Court of Justice held that a prohibition on the use of force did exist in customary law and that the U S had violated it 95 In light of both the Court's conclusory finding regarding state practice96 and its heavy reliance on non-binding General Assembly Resolutions to establish the requisite opinio juris 97 the legal reasoning underlying the judgment is suspect Nevertheless a majority of commentators concur in the ultimate finding that the prescription enjoys customary status 98 The problem in application of the customary standard to CNA is that the customary and Charter prescriptions while similar do not coincide The ICJ itself acknowledged this point in the Nicaragua case when it opined O n the question of the use of force the United States itself argues for a complete identity of the relevant rules of customary international law with the provisions of the Charter The Court has not accepted this extreme contention However the Charter gave expression in this field to principles already present in customary international law and that law has in the subsequent four decades developed under the Charter to such an extent that a number of the rules contained in the Charter have acquired a status independent of it 99 While state consent to be bound by a treaty can be interpreted as consent to reasonable application of accepted rules of interpretation the state practice and opinio juris requirements of customary international law may lead over time to divergence among formerly coincident norms Treaty law is both more and less flexible than its customary law counterpart On the one hand it is flexible in its susceptibility to interpretation in accordance with evolving context such context is consequential even in the absence of any shift in state practice perhaps the opportunity for state practice has not presented itself On the other hand it is inflexible in the sense that the prescription itself is frozen beyond interpretation thereof new norms require new consent Customary law by contrast is unlimited in scope but limited by the fact that it cannot react to evolving context absent practice and opinio juris Of course customary law responds to change in some degree For instance the prohibition of the use of force would extend to employment of any new weaponry that fell within the general ambit of armed force for in the same way that Article 2 4 always contemplated armed coercion so too has the customary standard Indeed because the Nicaragua decision was based on customary international law it is reasonable to extend the concept of force to the direct support arming training of those who employ it Nevertheless there is no basis in state practice for extension beyond the immediate periphery of armed force In particular the absence of any significant CNA practice renders it inappropriate to do so A customary norm may develop over time but it does not exist at present Neither practice nor opinio juris is in evidence 22 This is not to say that CNA exists wholly beyond the customary international law governing the use of force However whereas the approach proposed in this essay would extend the treaty application to computer network attacks causing consequences which approximated the nature of those involving armed force application of the customary norm to CNA would require it to be characterized as a new technique of armed force In order to rise to this level it must cause not analogous consequences but identical results specifically direct human injury or physical damage to tangible property Thus it must fall within the narrow category of computer network attacks that are appropriately characterized as an application of armed force 100 A final prospective point regarding customary international law lies in its greater potential scope In responding to incidents of computer network attack the effect of Article 2 4 can never advance beyond the interpretive boundaries of the existing use of force cognitive paradigm However over time a new customary norm may emerge that addresses CNA in and of itself quite aside from its use of force implications Such a norm may very well prove more restrictive than current prescriptions At the present the possibility is purely speculative Note that the prohibition on resort to force enjoys more than customary standing It has been identified by both the International Law Commission101 and the International Court of Justice102 as jus cogens-- a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the character 103 In essence jus cogens norms are customary norms writ large for they are not susceptible to avoidance through party consent e g in the form of a later treaty Given their customary character the treatment of computer network attack in the jus cogens context mirrors that with regard to customary international law Therefore this specific peremptory norm extends to CNA rising to the level of a de facto use of armed force but not to other forms of computer network attack Finally although this essay centers on the use of force it must be understood that the fact that a computer network attack does not violate peremptory customary or conventional use of force norms does not necessarily render CNA consistent with international law In particular an attack may amount to prohibited intervention in the affairs of other states As noted by the ICJ in the Nicaragua case t he principle of nonintervention right of every sovereign State to conduct its affairs without outside interference it is part and parcel of customary international law 104 The obligation to refrain from intervention finds further expression in various General Assembly Resolutions most notably the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty105 and the Declaration on Friendly Relations 106 CNA may be particularly appropriate for consideration in the context of intervention due to its reliance on technology Although the technology necessary to commit computer network attack is increasingly widespread technologically advanced states still maintain an edge in their ability to use it This disparity in access to the technique heightens its inadmissibility as a form of coercion 107 III Responding to Computer Network Attacks with Force While an in-depth analysis of the appropriateness of responding to computer network attack with force is beyond the purview of this essay a brief outline of the subject is 23 useful to help place the use of force prohibition in context With the exception of the operational code discussed supra the framework for appropriate uses of force generally resides within the UN Charter The Charter admits of only two situations allowing the use of force--Security Council authorized operations pursuant to Chapter VII and selfdefense in accordance with Article 51 Under Chapter VII the Security Council has the authority to determine the existence of any threat to peace breach of peace or act of aggression 108 When the Council does so it may call upon member states of the United Nations to apply measures not involving the use of armed forces to resolve the situation 109 Note that the measures contemplated include complete or partial interruption of telegraphic radio or other means of communication techniques likely to involve CNA If non-forceful measures have proved inadequate or if the Council believes that they would be futile it may take such action by air sea or land forces as may be necessary to maintain or restore international peace and security 110 Responses may include information operations falling into either the not involving armed force or armed force category as long as they are conducted in accordance with methods and means limitations 111 To the extent that the type of operation falls squarely within the mandate of the Security Council Resolution authorizing the action the distinction between the two categories is not particularly relevant However when does a computer network attack amount to a threat to peace breach of peace or act of aggression such that the Council may authorize a response by armed force The answer can only be provided by the Security Council for despite attempts by some states to imbue the provision with greater clarity during drafting of the Charter the member states decided to allow the Council wide discretion by leaving the terms relatively undefined 112 In 1974 the General Assembly defined the term aggression as the use of armed force by a State against the sovereignty territorial integrity or political independence of another State or in any manner inconsistent with the Charter of the United Nations 113 Cast in terms of armed force acts of aggression would only include those forms of CNA that rise to the level of armed force by virtue of their intent to cause direct damage or injury 114 However while all acts of aggression constitute breaches of the peace or threats thereto the obverse is not true threats to the peace do not necessarily amount to aggression Aggression is a pejorative term that implies fault it imposes responsibility A threat or breach of the peace by contrast may or may not be susceptible to the determination of blame but nevertheless may merit a forceful community response Moreover while attaching responsibility by labeling an act aggressive requires that armed force have occurred threatening or breaching of the peace need not The mere fact that the peace is threatened is enough for the Security Council to engage the matter But what is meant by peace Is it the absence of inter-state violence or does it envision something broader such as human well-being or community cooperation Article 1 2 for instance speaks of develop ing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples in order to strengthen universal peace 115 Nevertheless an overly expansive understanding of the concept would fly in the face of the sovereignty notions that pervade international law That being so the better interpretation seeks consistency with the Charter provision in which sovereignty concerns have already been balanced 24 against shared community values Article 2 4 's prohibition on the use of force In the Charter context then peace may best be defined as the absence of the use of force whether the use of that force is legitimate or not Article 39 represents a value choice in favor of community vice unilateral replies to uses of force By the breach of peace standard the Security Council could react forcefully pursuant to Article 42 to a computer network attack that amounted to a use of force as described above in the Article 2 4 context Of much greater significance to information operations is the threat to the peace standard It allows the Security Council to authorize a response by force to any situation that might provoke a breach of the peace use of force Legality or lack thereof of the prospective forceful response the breach of the peace to the provocation is not determinative as to whether a threat to the peace exists 116 The question of threat is factual not juridical To complicate matters the Security Council finds such threats with a fair degree of ease For example in 1991 the Council characterized fighting between the Yugoslavian government and the break-away states of Croatia and Slovenia as a threat to peace most likely due to fear that this internal armed conflict might eventually risk involvement from outside the country 117 Other examples of the Security Council finding threats to the peace in the last decade include inter alia the anarchy in Somalia 118 civil war in Liberia 119 and even the refusal of the Libyan government to turn over suspects in the Pan Am Flight 103 bombing 120 Given this liberality many forms of computer network attack whether a use of force or not could comprise a threat to the peace Each would have to be evaluated in context the permutations of which are infinite--time place target actor consequence etc What might cause one target state to react forcefully at a certain time or in particular circumstances might be perceived as relatively unimportant by another Certainly any serious CNA conducted by contenders in long-standing global flash-points e g IndiaPakistan Turkey-Greece risks ignition On the other hand it is possible to envision computer attacks among major Western economic powers perhaps in the form of economic espionage that would clearly not threaten the peace if discovered Reduced to basics though Security Council discretion in Chapter VII matters would be at its apex when determining whether a particular computer network attack amounts to a threat to the peace sufficient to justify a forceful community or community-authorized response Article 51 expresses the second UN Charter authorization of the use of force Nothing in the present Charter shall impair the inherent right of individual and collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security Measures taken by Members shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security 121 The sole authorization of unilateral use of force outside the Charter security system this provision responds to the reality that the international community may not be able to react quickly enough to armed aggression122 to forestall attack on a victim state It therefore permits states and their allies to defend themselves until the international posse arrives pursuant to Chapter VII 25 Note that Article 51 restricts a state's right of self-defense to situations involving armed attack a narrower category of act than Article 2 4 's use of force 123 Although coercion not involving armed force may violate Article 2 4 and result in action under Article 39 it does not follow that states may also react unilaterally pursuant to Article 51 This narrowing plainly reflects the Charter's preference for community responses e g even to threats to peace over individual ones In the case of a computer network attack it is also a prudent approach due to the difficulty states may have in identifying the correct source of an attack Thus faced with CNA that does not occur in conjunction with or as a prelude to conventional military force a state may only respond with force in self-defense if the CNA constituted armed force by the standard enunciated supra for armed force i e that it is intended to directly cause physical destruction or injury The victim state could repair to the Security Council and allege that other acts of CNA threaten the peace and merit a Chapter VII response but it could not respond forcefully thereto on its own accord Additionally computer network attacks falling short of armed attack might nevertheless violate Article 2 4 's prohibition on the use of force thereby subjecting the actor to international opprobrium but not to a response in self-defense The foregoing analysis applies only to situations in which the computer network attack occurs in total isolation What of computer network attacks launched to prepare the battle space The possibilities abound CNA disables intelligence gathering assets such as satellites An opponent attacks the Global Positioning Satellite System GPS to confound targeting and maneuver Computerized military medical records are corrupted to complicate provision of medical treatment upon the outbreak of hostilities A logic bomb is implanted in the reserve activation system programmed to operate upon call-up Concerted CNA brings down large sections of the military communications network In none of these situations does the attack in and of itself constitute an armed attack However each may very well be an essential step in just such an attack In certain circumstances they would merit a forceful response The prevailing standard maintains that an attack must be imminent before the right to self-defense matures In the nineteenth century Secretary of State Daniel Webster crafted the classic articulation of this anticipatory right with regard to the now famous Caroline incident He opined that self-defense should be confined to cases in which the necessity of that self-defense is instant overwhelming and leaving no moment for deliberation 124 Mere preparation failed the test Following World War II the Nuremberg Tribunal spoke approvingly of the Caroline standard 125 Unfortunately a conundrum surfaces in the application of the imminence criterion Some commentators assert a high standard for imminence reading the Caroline principle narrowly 126 Indeed on its face it appears to impose a fairly restrictive temporal test The force used in self-defense must occur just as the attack is about to be launched A better approach asks what the principle seeks to achieve Obviously it hopes to stave off violence so as to allow maximum opportunity for peaceful alternatives to work However at the same time it recognizes that states need not risk destruction through inaction The principle balances the desire to avoid inter-state violence against the right 26 of a state to exist unharmed This being so imminence is best understood as relative For instance as defensive options become more limited or less likely to succeed the acceptability of preemptive action grows A weak state may be justified in acting sooner than a stronger one when facing an identical threat simply because it is at greater risk in having to wait The greater the relative threat the more likely preemptive actions are to be effective and therefore the greater the justification for acting before the enemy can complete preparations and mount its aggressive attack Conceptually each victim state has a different window of opportunity within which it must act to counter the impending attack In some cases the window is wide extending even to the point of attack itself In others it may be much narrower Unless international law requires the potential victim to simply suffer the attack before responding 127 the proper standard for evaluating an anticipatory operation must be whether or not it occurred during the last possible window of opportunity Hence the appropriate question relates more to the correct timing of the preemptive strike than to the imminence of the attack that animates it It is not sufficient to look entirely to the victim state The likelihood of the pending attack should also determine the appropriateness of forceful response in self-defense Focusing on this point Professor Yoram Dinstein has despite rejecting the anticipatory terminology suggested the admissibility of interceptive defense under Article 51 Interceptive self-defence takes place after the other side has committed itself to an armed attack in an ostensibly irrevocable way Whereas a preventive strike anticipates an armed attack which is merely foreseeable or even just conceivable an interceptive strike counters an armed attack which is imminent and practically unavoidable 128 Anticipatory self-defense most effectively realizes the presumption against violence the preference for community responses and the right of a State to survival by combining the two elements Defense in advance of the attack is legitimate if the potential victim must immediately act to defend itself in a meaningful way and if the potential aggressor has irrevocably committed itself to attack Without the first requirement anticipatory selfdefense risks missing opportunities to resolve the situation peacefully without the second a danger exists of responding to an attack that is speculative at best A wide array of computer network attack operations executed to prepare the battle space may meet this standard By the anticipatory self-defense standard the right of a state to respond forcefully to them would depend not so much on the nature of the information operation as on its significance vis-a-vis the coming armed attack Does the CNA appear merely preparatory or is it more likely an irreversible step in the final chain of events Placement of a logic bomb in an air defense sector's warning network does not demand an immediate retort Attempting to corrupt the system as troops are massed along the border and the enemy's air force has just completed a 48-hour standdown represents a much more serious threat and may well merit an immediate defensive response How capable is the state of defending itself in the event the attack does come The logic bomb is only a potential interference with future operations whereas corruption of the air defense system may require a prompt response lest the opponent be able to destroy the victim State's air force on the ground without warning Is the CNA the sort of act that logically fits into a near-term attack sequence Attacking supply and transportation computer networks fits because it would hinder reinforcement 27 and resupply efforts So too do attacks on communication systems as C3 attacks are highly likely immediately preceding any attack 129 By contrast attacking defense research facility networks does not fit into a near-term attack sequence because the benefits of most such operations are likely to be reaped long after the computer attack occurs Essentially the right to respond forcefully in self-defense to a computer network attack that does not in and of itself constitute an armed attack arises upon the confluence of three factors 1 The CNA is part of an overall operation culminating in armed attack 2 The CNA is an irrevocable step in an imminent near-term and probably unavoidable attack and 3 The defender is reacting in advance of the attack itself during the last possible window of opportunity available to effectively counter the attack 130 Note that it is not the CNA that is actually being defended against but instead the overall armed attack complete with its information operation component Thus compliance with the requirement that acts in self-defense be proportional is measured against the armed attack not the CNA 131 For the same reason the attack need not be against the facility that launched the CNA or even designed to counter this or other computer network attacks Again the armed attack is the normative driver not the information operation The final issue surrounding self-defense is whether Article 51 subsumes the inherent right to self-defense in other words whether a separate and distinct right exists in customary international law Clearly a customary law right to self-defense exists a fact recognized by the ICJ in the Nicaragua case But is that right only meaningful to states which are not party to the UN Charter or those which would exercise collective defense to come to their assistance or does the right exist altogether separately Is it limited to armed attack and does it evolve in different directions and at a different pace This debate has permeated scholarship and practice regarding the law of self-defense for the last five decades 132 However in the context of the Charter security scheme the right clearly appears limited to defense against armed attacks If a less restrictive customary international law norm would permit responses to situations other than armed attacks parties to the Charter would still be bound by their treaty obligation Of course an operational code regarding defensive responses to CNA which varies from the armed attack standard could develop that is less-restrictive than Article 51 That would not alter the content of the standard but simply relegate it to the positivist myth system IV Concluding Thoughts on the Appropriate Normative Framework Computer network attack represents a new tool of coercion in the international arena one that is fundamentally different from those previously available Arguably its distinctiveness merits consideration of a new and unique normative framework to specifically address computer network attack or more broadly information operations However consensus on the need for such an effort let alone its substantive content is unlikely to be achieved at any time in the near future Cognizant of this reality and of the fact that efforts to develop and field computer network attack capability are being pursued vigorously the essay considers this new 28 coercive technique within the current prescriptive environment It suggests an analysis of computer network attack under international law particularly as framed with the U N Charter that would proceed as follows 1 Is the technique employed in the CNA a use of armed force It is if the attack is intended to directly cause physical damage to tangible objects or injury to human beings 2 If it is not armed force is the CNA nevertheless a use of force as contemplated in the U N Charter It is if the nature of its consequences track those consequence commonalities which characterize armed force 3 If the CNA is a use of force armed or otherwise is that force applied consistent with Chapter VII the principle of self-defense or operational code norms permitting its use in the attendant circumstances a If so the operation is likely to be judged legitimate b If not and the operation constitutes a use of armed force the CNA will violate Article 2 4 as well as the customary international law prohibition on the use of force c If not and the operation constitutes a use of force but not armed force the CNA will violate Article 2 4 4 If the CNA does not rise to the level of the use of force is there another prohibition in international law that would preclude its use The most likely candidate albeit not the only one would be the prohibition on intervening in the affairs of other States Assuming a CNA occurs the appropriateness of a response by armed force may be analyzed in the following manner 1 If the computer network attack amounts to a use of armed force then the Security Council may characterize it as an act of aggression or breach of peace and authorize a forceful response under Article 42 of the Charter To constitute an armed attack the CNA must be intended to directly cause physical damage to tangible objects or injury to human beings 2 If the CNA does not constitute an armed attack the Security Council may nevertheless find it to threaten the peace the absence of inter-state violence and authorize a use of force to prevent a subsequent breach of peace The CNA need not amount to a use of force before the Council may determine that it threatens peace 3 States acting individually or collectively may respond to a CNA amounting to armed attack with the use of force pursuant to Article 51 and the inherent right of self-defense 4 States acting individually or collectively may respond to a CNA not amounting to armed attack but which is an integral part of an operation intended to culminate in armed attack when a The acts in self-defense occur during the last possible window of opportunity available to effectively counter the attack and b The CNA is an irrevocable step in an imminent near-term and probably unavoidable attack The indeterminacies in this scheme are the evolution of customary law and the emergence of operational code norms It is entirely possible that customary law norms restricting the use of CNA beyond Charter levels could emerge However any such 29 process would be incremental Much more likely is emergence of new operational codes either enhancing or relaxing existing norms in response to the exploding possibilities of information operations To the extent that such codes reflect the expectations of the politically effective actors on the international scene policy vectors assume normative valence The United States unfortunately faces a dilemma with regard to an appropriate policy stance vis-a-vis computer network attack Its technological wherewithal renders it the state most capable of conducting information operations but also the one most vulnerable particularly to CNA The temptation to exploit one's strengths drives much of the serious attention paid by U S government agencies both military and civilian to offensive information operations However as time goes on our relative advantage will inevitably slip as IO know-how diffuses to increasing numbers of states Moreover it will prove an attractive asymmetric option to states unable to field forces to the level of the United States and its closest allies Given this likely unfolding of events perhaps the policy approach that best fosters U S interests is one advocating a restrictive view of the permissibility of computer network attack Since the Charter use of force prohibition reflects a fair degree of imprecision in the CNA context this approach would favor greater inclusivity in gray area applications of the norm This predilection to restrictions on CNA operations should not be interpreted as a suggestion that the criteria for armed attack be relaxed On the contrary maintaining a relatively high threshold for triggering the right to respond to CNA in self-defense although not enhancing its deterrent effect serves to maintain constraints on the usually more disruptive act of unilateral resort to armed force Furthermore should an information operation be mounted that raises the question of whether an act of armed force has occurred it would in all likelihood amount to a threat to the peace and thereby seize the Security Council of the matter This may be faint consolation for the state facing a serious computer network attack but from a world order perspective it represents the optimal alternative As Myres McDougal and Federico Feliciano eloquently noted nearly four decades ago The overwhelming common interest in basic order and the exorbitant potential costs of exercise of force by contemporary weapons would appear to counterbalance losses states may occasionally incur from lesser wrongs left inadequately redressed because of deficiencies in available remedial procedures or the limited ability of a poorly organized community to create effective remedies for all wrongs 133 Ultimately of course it is achievement of world order that best fosters the shared community values underlying the jus ad bellum 30 About the Institute The Institute for Information Technology Applications IITA was formed in 1998 to provide a means to research and investigate new applications of information technology The Institute encourages research in education and applications of the technology to Air Force problems that have a policy management or military importance Research grants enhance professional development of researchers by providing opportunities to work on actual problems and to develop a professional network Sponsorship for the Institute is provided by the Secretary of the Air Force for Acquisition the Air Force Office of Scientific Research and the Dean of Faculty at the U S Air Force Academy IITA coordinates a multidisciplinary approach to research that incorporates a wide variety of skills with cost-effective methods to achieve significant results Proposals from the military and academic communities may be submitted at any time since awards are made on a rolling basis Researchers have access to a highly flexible laboratory with broad bandwidth and diverse computing platforms To explore multifaceted topics the Institute hosts single-theme conferences to encourage debate and discussion on issues facing the academic and military components of the nation More narrowly focused workshops encourage policy discussion and potential solutions IITA distributes conference proceedings and other publications nation-wide to those interested or affected by the subject matter 31 Endnotes 1 See CHARLES SWETT STRATEGIC ASSESSMENT TH INTERNET July 17 1995 available at http www fas org cp swett htm To illustrate the global nature of the phenomenon consider the number of computers linked to the worldwide net per ten thousand 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 Sub Comm 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 herinafter 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 On the changing face of war and its relationship to the law of armed conflict see generally Michael Schmitt Bellum Americanum The U S View of Twenty-First Century War and Its Possible Implications for the Law of Armed Conflict in THE LAW OF ARMED CONFLICT INTO THE NEXT MILLENNIUM 389 Michael Schmitt Leslie Green eds 1998 For more general discussion of the revolution in military affairs see WILLIAM S COHEN SECRETARY OF DEF ANN REP TO THE PRESIDENT AND CONGRESS ch 13 1998 Dennis M Drew Technology and the American Way of War Worshipping a False Idol AIR FORCE J LOGISTICS Winter 1987 at 21 James R Fitzsimonds The Coming Military Revolution Opportunities and Risks PARAMETERS Summer 1995 at 30 Dan Goure Is There a Military-Technical Revolution in America's Future WASH Q Autumn 1993 at 175 Andrew F Krepinevich Jr Cavalry to Computer The Pattern of Military Revolutions in STRATEGY AND FORCE PLANNING 582 Naval War College Faculty ed 1995 Andrew F Krepinevich Jr Keeping Pace with the Military-Technical Revolution ISSUES IN SCIENCE TECHNOLOGY Summer 1994 at 23 Kenneth F McKenzie Jr Beyond Luddites and Magicians Examining the MTR PARAMETERS Summer 1995 at 15 Abhi Shelat An Empty Revolution MTR Expectations Fall Short HARVARD INTERNATIONAL REVIEW Summer 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 IWBIB1 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 THE INFORMATION AGE AN ANTHOLOGY ON ITS IMPACT AND CONSEQUENCES David S Alberts Daniel S Papp eds 1997 CYBERWAR SECURITY STRATEGY AND CONFLICT IN THE INFORMATION AGE Alan Campen ed 1996 CYBERWAR 2 0 MYTHS MYSTERIES AND REALITY Alan Campen Douglas Dearth eds 1998 MARTIN C LIBICKI THE MESH AND THE NET SPECULATIONS ON ARMED CONFLICT IN A TIME OF FREE SILICON 1995 MARTIN C LIBICKI WHAT IS INFORMATION WARFARE 1995 WINN SCHWARTAU INFORMATION WARFARE CHAOS ON THE ELECTRONIC SUPERHIGHWAY 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 For surveys on information operations and the law see generally Office of the Judge Advocate General Headquarters United States Air Force A Primer on Legal Issues in Information Warfare 3d ed 1997 David J DiCenso Information Operations An Act of War Oct 7 1998 unpublished report for the Institute of National Security Studies U S Air Force Academy Charles Dunlap The Law of Cyberwar A Case Study from the Future in CYBERWAR 2 0 MYTHS MYSTERIES AND REALITY Alan Campen Douglas Dearth eds 1998 LAWRENCE GREENBERG ET AL INFORMATION WARFARE AND INTERNATIONAL LAW 1998 Sean P Kanuck Information Warfare New Challenges for Public International Law 37 HARV INT'L L J 272 1996 Mark R Shulman Discrimination in the Laws of Information Warfare 37 COLUM J TRANS L 939 1999 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 4 32 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 100-6 INFORMATION OPERATIONS Aug 27 1996 U S DEP'T OF THE MARINES 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 281 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 151 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 ROGER C MOLANDER ET AL STRATEGIC INFORMATION WARFARE A NEW FACE OF WAR 66 1996 21 See Kanuck supra note 7 at 289 22 See Molander supra note 20 at 74 23 See PRESIDENT'S COMMISSION ON CRITICAL INFRASTRUCTURE PROTECTION CRITICAL FOUNDATIONS PROTECTING AMERICA'S INFRASTRUCTURES A-48 Oct 1997 24 See id at A-46 25 See TED UCHIDA SCHOOL OF ADVANCED MILITARY STUDIES U S ARMY COMMAND AND GENERAL STAFF COLLEGE BUILDING A BASIS FOR INFORMATION WARFARE RULES OF ENGAGEMENT 8 1997 In order to test computer security DISA periodically uses typical hacker-tools to attack DOD computers During a test of over twenty-six thousand 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 INFORMATION WARFARE DEFENSE IW-D 215 Nov 1996 In another study looking at the results of fifty-nine assessments involving 37 518 computers 3 6% had 33 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 Paul A Strassmann Information Terrorism The Ultimate Infosec Challenge Briefing at National Defense University Jan 5 1998 26 See OFFICE OF SCIENCE AND TECHNOLOGY POLICY EXECUTIVE OFFICE OF THE PRESIDENT CYBERNATION THE AMERICAN INFRASTRUCTURE IN THE INFORMATION AGE Apr 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 29 supra note 25 at 2-14 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 supra note 23 at 3-4 30 Arsenio T Gumahad II The Profession of Arms in the Information Age JOINT FORCE Q Spring 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 destabilize 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 Steve Lohr Ready Aim Zap National Security Experts Plan for Wars Whose Targets and Weapons are all Digital N Y TIMES Sept 30 1996 at D-1 34 31 On asymmetry see generally Schmitt supra note 4 Planning Considerations for Defensive Information Warfare Task Order 90-SAIC-019 Dec 16 1993 prepared for The Defense Information Systems Agency Joint Interoperability and Engineering Organization and Center for Information Systems Security citing Robert D Steele War and Peace in the Age of Information Superintendent's Guest Lecture Naval Postgraduate School August 1993 hereinafter Planning Considerations 33 See Planning Considerations supra note 32 at 17 34 See JANE'S ALL THE WORLD'S AIRCRAFT 676 Paul Jackson et al eds 1997-98 35 See PRESIDENT'S COMMISSION ON CRITICAL INFRASTRUCTURE PROTECTION supra note 23 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 HAI LUNG CHANG FENG CHINESE MILITARY STUDIES INFORMATION WARFARE Hong Kong PTS Msg 210225Z Feb 96 Subj PLA Undertakes Study of Information Warfare Publications Translations Section U S Consulate General Hong Kong trans 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 nonmilitary 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 Mary C FitzGerald Russian Views on Electronic and Information Warfare in NATIONAL DEFENSE UNIVERSITY PROCEEDINGS OF THE THIRD INTERNATIONAL COMMAND AND CONTROL RESEARCH AND TECHNOLOGY SYMPOSIUM PARTNERS FOR THE 21ST CENTURY 126 1997 38 See Mark Walsh U S Military Expands Information Warfare Defense DEF NEWS Apr 28-May 4 1997 at 25 Lohr supra note 30 at D4 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 www1 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 art 2 para 4 42 See id art 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 32 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 KEY RESOLUTIONS OF THE UNITED NATIONS GENERAL ASSEMBLY 1946-1996 at 3 Dietrich Rauschning et al eds 1997 hereinafter Declaration on Friendly Relations 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 Romana Sadurska Threats of Force 82 AM J INT'L L 239 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 IAN BROWNLIE INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 265-69 1963 hereinafter BROWNLIE USE OF FORCE 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 5556 June 14 1996 Advanced Research Project United States Naval War College 46 See e g YORAM DINSTEIN WAR AGGRESSION AND SELF-DEFENSE 86 2d ed 1994 Josef Mrazek Prohibition of the Use and Threat of Force Self-Defence and Self-Help in International Law 27 CAN Y B INT'L L 81 90 1989 Albrecht Randelzhofer Article 2 4 in THE CHARTER OF THE UNITED NATIONS A COMMENTARY 106 117-18 Bruno Simma et al eds 1995 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 35 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 W Michael Reisman Criteria for the Lawful Use of Force in International Law 10 YALE J INT'L L 279 281 1985 hereinafter Reisman Criteria See also W Michael Reisman Article 2 4 The Use of Force in Contemporary International Law 78-79 AM SOC INT'L L PROC 74 79-84 1984-85 W Michael Reisman War Powers The Operational Code of Competence 83 AM J INT'L L 777 1989 49 See Reisman Criteria supra note 48 at 282 50 For an interesting projection of factors likely to affect the use of force in the future see Anthony D'Amato Megatrends in the Use of Force in THE LAW OF ARMED CONFLICT supra note 4 at 1 51 Vienna Convention on the Law of Treaties May 23 1969 art 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 a 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 See Randelzhofer supra note 46 at 112 Hans Wehberg L'Interdiction du Recours a la Force Le Principe et les Problemes qui se Posent 78 R C A D I 1 69 1951 53 Vienna Convention supra note 51 art 31 2 54 Id arts 41 46 55 U N CHARTER art 111 56 Vienna Convention supra note 51 art 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 art 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 art 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 Declaration on Friendly Relations supra note 43 prin 1 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 U N GAOR Special Comm On Friendly Relations 24th Sess 114th mtg U N Doc A AC 125 SR 114 1970 See also Report of the Special Comm on Friendly Relations U N GAOR 24th Sess Supp No 19 at 12 U N Doc A 7619 1969 Derek W Bowett Economic Coercion and Reprisals by States 13 VA J INT'L L 1 1972 65 See e g a war of aggression irregular forces or bands acts of civil strife or terrorist acts military occupation disarmament etc Declaration on Friendly Relations supra note 43 prin 1 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 36 67 G A Res 42 22 U N GAOR 42d Sess 73d plen mtg Agenda Item 131 annex art I 7-8 1988 reprinted in KEY RESOLUTIONS supra note 43 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 art 31 3 69 On economic sanctions see Paul Szasz The Law of Economic Sanctions in THE LAW OF ARMED CONFLICT supra note 4 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 HANS KELSEN COLLECTIVE SECURITY UNDER INTERNATIONAL LAW 57 n 5 49 Naval War College International Law Studies 1954 1956 Ian Brownlie disagrees with this assessment arguing that there is no evidence that it bears the meaning suggested by Kelsen BROWNLIE USE OF FORCE supra note 45 at 362 71 Military and Paramilitary Activities Nicar v U 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 Jordan J Paust Albert P Blaustein The Arab Oil Weapon A Threat to International Peace 68 AM J INT'L L 410 1974 73 On the appropriateness of applying the economic instrument see Clinton E Cameron Developing a Standard for Politically Related State Economic Action 13 MICH J INT'L L 218 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 W Michael Reisman Allocating Competences to Use Coercion in the Post-Cold War World Practices Conditions and Prospects in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 26 45 Lori Fisler Damrosch David J Scheffer eds 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 art 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 Michael N Schmitt War and the Environment Fault Lines in the Prescriptive Landscape ARCHIV DES VOLKERRECHTS 1999 forthcoming 78 U N CHARTER art 41 79 See BROWNLIE USE OF FORCE supra note 45 at 362 80 On non-lethal weapons see James C Duncan A Primer on the Employment of Non-Lethal Weapons 45 NAVAL L REV 1 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 37 82 For summaries of applicable domestic law see JOINT CHIEFS OF STAFF INFORMATION ASSURANCE LEGAL REGULATORY POLICY AND ORGANIZATION CONSIDERATIONS 3d ed 1997 4 Roger D Scott Legal Aspects of Information Warfare Military Disruption of Telecommunications 45 NAVAL L REV 57 64-75 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 technologicallydependent 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 arts 51 5 b 57 2 iii reprinted in 3 HAROLD S LEVIE PROTECTION OF WAR VICTIMS PROTOCOL 1 TO THE 1949 GENEVA CONVENTIONS 174 337 1980 hereinafter ADDITIONAL 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 PIETRO VERRI DICTIONARY OF THE INTERNATIONAL LAW OF ARMED CONFLICT 90 Edward Markee Susan Mutti trans 1992 85 Additional Protocol I supra note 84 arts 54 55 56 86 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Dec 10 1976 art 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 KEY RESOLUTIONS supra note 43 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 996 89 See IAN BROWNLIE PRINCIPLES OF PUBLIC INTERNATIONAL LAW 631-32 4th ed 1990 90 MALCOLM N SHAW INTERNATIONAL LAW 659 4th ed 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 art 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 Id at 100 The Court did not actually catalogue state practice instead it merely noted that state conduct was generally consistent with the rule Randelzhofer labels this line of argument highly disputable Randelzhofer supra note 46 at 126 97 The Court cited the unanimous adoption in 1970 of the Declaration on Friendly Relations supra note 43 See 1968 I C J 4 100 Recall that the Declaration reiterated the language of Article 2 4 For criticism of this approach see Anthony D'Amato Trashing Customary International Law 81 AM J INT'L L 101 1987 On the relationship between the Charter and the Declaration see F L Kirgis Custom on a Sliding Scale 81 AM J INT'L L 146 147 1987 98 See BROWNLIE USE OF FORCE supra note 45 at 113 Dinstein supra note 46 at 93 PETER MALANCZUK AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 311 7th rev ed 1997 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 art 53 38 102 See 1968 I C J 4 100 Vienna Convention supra note 51 art 53 104 1968 I C J 4 para 202 105 Declaration on Inadmissibility of Intervention supra note 87 103 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 See Declaration on Friendly Relations supra note 43 The United States offered no statement challenging that characterization 106 See Declaration on Friendly Relations supra note 43 107 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 art 39 For an excellent commentary on the article see Jochen Frowein Article 39 in THE CHARTER OF THE UNITED NATIONS A COMMENTARY supra note 46 at 605 109 U N CHARTER art 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 art 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 Umesh Palwankar Applicability of International Humanitarian Law to United Nations Peace-Keeping Forces INT'L REV RED CROSS May-June 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 341-42 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 art 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 KEY RESOLUTIONS supra note 43 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 39 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 43 art 3 115 U N CHARTER art 1 para 2 116 See Frowein supra note 108 at 612 117 See S C Res 713 U 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 193-95 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 193-95 121 U N CHARTER art 51 For an excellent survey of the article see Albrecht Randelzhofer Article 51 in THE CHARTER OF THE UNITED NATIONS A COMMENTARY supra note 46 at 106 122 The French text of the Charter uses the term agression armee 123 The limit of self-defense to response to an armed attack is not universally accepted See Tom J Farer Political and Economic Coercion in Contemporary International Law 79 AM J INT'L L 405 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 40 the Charter sense Allowing forcible reprisal to non-military coercion would broaden the grounds for use of force to an intolerable degree Oscar Schachter In Defense of International Rules on the Use of Force 53 U CHI L REV 113 127 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 Derek W Bowett Reprisals Involving Resort to Armed Force 66 AM J INT'L L 1 4 n 8 1972 See e g Oscar Schachter The Right of States to Use Armed Force 82 MICH L REV 1620 1634-35 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 supra note 46 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 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 905 1987 Profess 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 J L Kinz Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations 41 AM J INT'L L 872 1947 Hans Kelsen Collective Security and Collective Self-Defense under the Charter of the United Nations 42 AM J INT'L L 783 791-92 1948 PHILIP JESSUP A MODERN LAW OF NATIONS 165 1948 Quincy Wright The United States Intervention in Lebanon 53 AM J INT'L L 112 1959 Taking the contrary approach were JAMES BRIERLY THE LAW OF NATIONS 416 1963 L C Green Armed Conflict War and Self-Defence 6 ARCHIV DES VOLKERRECHTS 387 1957 MYRES MCDOUGAL FREDERICO FELICIANO LAW AND MINIMUM WORLD PUBLIC ORDER 263 1961 The ILC took no position on the issue 133 McDougal Feliciano supra note 132 at 207-08 126 41 This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu