AN ASSESSMENT OF INTERNATIONAL LEGAL ISSUES IN INFORMATION OPERATIONS SECOND EDITION NOVEMBER 1999 Department of Defense Of ce of General Counsel PREFACE This assessment of international legal issues in information operations reflects the combined efforts of a superb team of Department of Defense lawyers it could not have been produced without the contributions of representatives of the General Counsels of the Army Navy Air Force the National Security Agency and the Defense lnformation Systems Agency as well as the Judge Advocates General of the military services and the Legal Counset to the Chairman of the Joint Chiefs of Staff Their insight wisdom and persistence have not only been of great value but have reflected exceeding well on themselves and their offices The principal Phillip A Johnson Colonel USAF Retired is owed a note of special appreciation his scholarship and dedication were truly extraordinary This second edition contains a number of editorial changes refers to several events that have occurred since publication of the first edition including a brief discussion in Section ll of actions during the 1999 NATO bombing campaign in Yugoslavia adds a paragraph in Section Vt concerning the U S Soviet Dangerous Military Activities Agreement and by popular demand adds Section Xl Notes for Further Research II TABLE OF CONTENTS INTRODUCTION A Sources and Application of lutcmatioaal Law B Essemials of Treaty Law C New Legal Challenges Presented by Information Operations THE LAW OF WAR A Essentials oftlie Law ofWar 8 Application to Informaiion Operations C Assessment INTERNATIONAL LEGAL REGULATION OF THE USE OF FORCE IN A International Law Concerning the Use of Force among Nations B Acts not Amounting to the Use ofForce C Application to Computer Neiwork Attacks D An Active Defense against Computer Network Attacks E Assessment SPACE LAW A Introduction 8 Space Law C Speci c Prohibitions of Military Activities in Space D Domestic Law and Policy B International Effons to Control Weaponization of Space F Assessment COMMUNICATIONS LAW A International Communications Law 8 Domestic Communications Law C Assessment kbVI VII IX XI IMPLICATIONS OF OTHER TREATMES Mutual LegaI Assistance Agreements Extradition Agreements The United Nations Convention en the Law ofthe Sea UNCLOS Treaties on CiviI Aviation Treaties on Diplematic Relations Treaties 0f Friendship Commerce and Navigation States ofFerees and Stationing Agreements US Seviet Dangerous Military Activities Agreement FOREIGN DOMESTIC LAWS A Intxeduction B Ceeperatien in Investigatione and I roseeutiens C Effect ofForeigrt Domestic Law on Actiens of US Infermatien Operators IMPLICATIONS OF ESPIONAGE LAW A Espitmage under I temational Law B Espionage during Armed Con ict C Espienage in Peaeetime I Assessment INTERNATIONAL EFFORTS TO RESTRICT OBSERVATIONS NOTES FOR FURTHER RESEARCH by U L1 Ln Lu LL LA MONCALALUJUJ be 1 INTRODUCTION A Sources and Application of International Law International law consists of binding legal obligations among sovereign states Two of the basic principles of the international legal system are that sovereign states are legally equal and independent actors in the world community and that they generally assume legal obligations only by af rmatively agreeing to do so The most effective instruments in creating international law are international agreements which may be either bilateral or multilateral Some of these agreements such as the United Nations Charter establish international institutions that the parties agree to invest with certain authority It is also generally accepted that there is a body of customary international law which consists of practices that have been so widely followed by the community of nations with the understanding that compliance is mandatory that they are considered to be legally obligatory International institutions have legislative authority to create legal obligations for nations only when their member nations have agreed to give them that authority The most prominent example is the power of the UN Security Council to pass resolutions requiring individual nations to perform or refrain oor certain actions in order to protect or restore international peace and security in the context of a particular situation The decisions of the International Court of Justice are binding upon nations that have accepted thejurisdiction ofthe Court and are parties to litigation before it Other international institutions can also be given the power to impose binding obligations upon nations that agree to submit to their authority In addition certain actions of some international institutions such as the International Court of Justice and the UN General Assembly are considered to be persuasive evidence of the existence ofprinciples of customary international law As with domestic law the primary mechanism that makes international law effective is voluntary compliance Also as with domestic law the threat of sanctions is oilen required as well The international legal system provides institutional enforcement mechanisms such as international litigation before the International Court oflustice and other judicial and arbitral tribunals as well as the right to petition the United Nations Security Council to authorize coercive measures to protect or restore international peace and security Tl he international legal system also provides self-help enforcement mechanisms such as the right to use force in individual and collective self dcfense and the right in some circumstances to repudiate treaty obligations which have been violated by another party A11 aggrieved nation may always withdraw om voluntary relationships involving diplomatic representation and most kinds of commerce Even the right to publicly complain about another nation s illegal behavior may provide an effective enforcement mechanism if such complaints generate diplomatic costs for the offending nation Chief Justice Oliver Wendell Holmes once wrote The life ofthc law has not been logic it has been experience It seldom happens that a legislature foresees a problem before it arises and puts into place a legislative solution before it is needed More typically legislators react to a problem that has already manifested itself The international legal system operates in the same manner The international community ordinarily does not negotiate treaties to deal with i a a problems until their consequences have begun to be felt This is not all bad since the solution can be tailored to the actual problems that have occurred rather than to a range of hypothetical possibilities One consequence however is that the resulting law whether domestic or' international may be sharply in uenced by the nature of the events that precipitate legal developments together with all their attendant policy and political considerations The development of international law concerning artificial earth satellites provides a good example nations had sat doom with perfect foresight and asked themselves Should we permit those nations among us that have access to advanced technology to launch satellites into orbits that will pass over the territories of the rest of us and take high resolution imagery eavesdrop on our telecommunications record weather information and broadcast information directly to telephones and computers within our borders a very restrictive regime of space law might have resulted Instead what happened was that the rst satellites launched by the Soviet Union and the United States were seen as entirely benign devices engaged in scienti c research and it was also perfectly clear that no nation had the capability to interfere with them as they passed over its territory In these circumstances it quickly became accepted customary international law soon enshrined in the Outer Space Treaty that objects in orbit were beyond the territorial claims of any nation and that outer space is available for exploitation by all he history of space law contrasts sharply with that of air law Much of the early development ofhcavierathan air aviation coincided with the First World War during which the military power of aircraft for collecting intelligence attacking ground forces and bombing enemy cities was clearly demonstrated The result was a highly restricted regime of air law in which any entry into a nation s airspace without its permission was to be regarded as a violation of its sovereignty and territorial integrity Similarly we can make some educated guesses as to how the international legal system will respond to information operations but the direction that response actually ends up taking may depend a great deal on the nature of the events that draw the nations attention to the issue lfinformation operations techniques are seen as just another new technology that does not greatly threaten the nations interests no dramatic legal developments may occur If they are seen as a'revolntionary threat to the security of nations and the welfare of their citizens it will be much more likely that efforts will be made to restrict or prohibit information operations by legal means These are considerations that national leaders should understand in making decisions on using information operations techniques in the current formative period but it should also he understood that the course of More events is often beyond the control of statesmen The actors in the international legal system are sovereign states International legal obligations and international enforcement mechanisms generally do not apply to individual persons except where a nation enforces certain principles of international law through its domestic criminal law or in a very limited class of serious o enscs war crimes genocide crimes against humanity and crimes against peace that the nations have agreed may be tried and punished by international criminal tribunals ix 8 Essentials of Treaty Law hi domestic US law there are important distinctions between treaties and executive agreements This distinction primarily involves issues of Constitutional authority within the US government but it is of little importance internationally Treaties and executive agreements are equally binding benyeeo the United States and the other party or parties to an international agreement We will use the term treaty in this paper as a shorthand way of referring to all forms of legally binding statedo state ioternatiotial agreements Treaty obligations are binding on their parties but hatertiatiooal law recognizes certain circumstances in which a nation can regard a treaty obligation as being suspended modi ed or terminated The parties can always modify or terminate a treaty by mutual consent Some international agreements expire by their mm terms after a xed period of time Generally unless the terms of the agreement establish a right of unilateral withdrawal a nation may not unilaterally repudiate or withdraw from a treaty unless it has a basis for doing so that is recognized under iotemational law Treaty obligations are reciprocal in nature If one of the parties commits a material breach of its obligations under the treaty the other may be entitled to suspend its own compliance or to withdraw from the agreement entirely Also a tndaoreutal change in circumstances may justify a decision by one of the parties to regard its treaty obligations as suspended or terminated One of these fundamental changes of circumstance is the initiation ofarmcd hostilities between the parties Some international agreements speci cally provide that they will remain in effect during armed con ict between the parties such as law of war treaties and the United Nations Charter Most treaties however are silent on whether or not they will continue to apply during hostilities between the parties Many peacetime agreements facilitate tourism transpottatioa commerce and other relationships the continuation of which would be mdamentally inconsistent with a state of armed con ict between the parties Agreeittents on other subjects such as boundary settlements and reciprocal rights of inheritance of private property may be unrelated to the existence of hostilities and may ultimately be determined to remain in full force The issues involved may be particularly complicated when the treaty concerned is multilateral rather than bilateral When two parties to a multilateral treaty are engaged to armed con ict the result may well be that the effect of the treaty is suspended between the belligereots but remains in effect among each belligerent and the other parties We will see later in this paper that the United States is a party to a variety of bilateral and multilateral agreements containing obligations that may affect information operations One of our tasks will be to determine as best we can which of these agreements are likely to remain in effect during hostilities The tests we will apply are 1 whether there is speci c language in the treaty addressing its effect during hostilities between the parties and 2 if there is no such language whether the object and purpose of the treaty is or is not compatible with a state of armed hostilities between the parties i i C New Leaal Challenges Presented by Information Operations Many traditional military activities are included in current concepts of information operations and information warfare including physical attacks on information systems by traditional military means operations military deception and electronic warfare operations such as jamming radar and radio signals The application of international law to these traditional kinds of operations is reasonably well settled Similarly electromagnetic pulse EMF weapons and directed energy weapons such as lasers microwave devices and high energy radio frequency guns will probably operate in a manner similar enough to that of traditional weapons that one could apply existing legal principles to them without much dif culty It will not be as easy to apply existing international law principles to information attach a term used to describe the use of electronic means to gain access to or change information in a targeted information system without necessarily damaging its physical components One of the principal forms of information attack is likely to be computer network attack or in today s vernacular the of another nation s computer systems The proliferation of global electronic counnuuications systems and the increased interoperability of computer equipment and operating systems have greatly improved the utility of all kinds of information systems At the same time these developments have made information systems that are connected to any kind of network whether it be the Internet or some other radio or hard-wired communications system vulnerable to computer network attacks Moreover global communications are almost seamlessly interconnected and virtually instantaneous as a result of which distance and geographical boundaries have become essentially irrelevant to the conduct of computer network attacks The result is that many information systems are subject to computer network attack anywhere and anytime The attacker may he a foreign state an agent of a foreign state an agent of a non-governmental entity or group or an individual acting for purely private purposes The equipment necessary to launch a computer network attack is readily available and inexpensive and access to many computer systems can he obtained through the Internet or through another network to which access is obtained One major implication is that it may be very dif cult to attribute a particular computer network attack to a foreign state and to characterize its intent and motive For the purposes of analysis we will initially assume away issues of attribution and characterization returning to them near the end of the analysis Another major implication is that an attacker may not be physically present at the place where the effects of the attack are felt The means ofattack may not be tan gihly present either except in the form of anonymous and invisible radio waves or electrons This will complicate the application of traditional rules of international law that developed in response to territorial invasions and attacks by troops aircraft vehicles vessels and kinetic weapons that the victim could see and touch and whose sponsor was usually readily apparent II THE LAW OF WAR A Essentials of the Law of War The terms law ofwar and law of armed con ict are synonymous The latter term has the virtue that it more clearly applies to all international armed con icts whether or not they are formally declared wars Law of war is shorter and more familiar and we will use it in this paper The application of the law of war does not generally depend on which of the parties was at fault in starting the con ict The law of war applies ixtltenever there is a state of international armed con ict and it applies in the same manner to all the parties to the con ict There is a small subset of the law of war that applies to nouintemational armed con icts such as civil wars but those sorts of con ict are not immediately relevant to this paper and will not be discussed As with other branches of international law the law of war is composed oftreaties and customary international law The United States is a party to eighteen law of war treaties along with their various annexes and protocols and several more law of war agreements are pending before the Senate The United States also recognizes the existence of a considerable body of customary law of war The general principles of the law of war have been expressed in various ways but their essence can be said to be as follows Distinction of combatants from noncombatants With very limited exceptions only members of a nation s regular armed forces are entitled to use force against the enemy They must distinguish themselves from noncombatants and they must not use nonconibatants or civilian property to shield themselves from attack lf lawful combatants are captured by the enemy they may not be punished for their combatant acts so long as they complied with the law of war They are required to be treated humanely in accordance with agreed standards for the treatment of prisoners of war and they must be released at the cessation of hostilities Persons who commit combatant acts without authorization are subject to criminal prosecution - Military necessity Enemy military forces are declared hostile They may be attacked at will along with their equipment and stores Civilians and civilian property that make a direct contribution to the war effort may also be attacked along with objects whose damage or destruction would produce a military advantage because of their nature location purpose or use A corollary of this principle is that noncombatants and civilian objects making no direct contribution to the war elicit and whose destruction would provide no signi cant military advantage to the attacker are immune from deliberate attack Proportionality When an attack is made against a lawful military target collateral injury and damage to uoncombatants and civilian property may be unavoidable Attacks may be carried out against lawful military targets even if some amount of collateral damage is foreseeable unless the foreseeable collateral damage is disproportionate to the militaiy advantage likely to be attained The military advantage to be gained om an attack refers to an attack considered as a whole rather than only from isolated or particular parts of an attack Generally military advantage is not restricted to tactical gains but is linked to the full context of war strategy The commander ordering the attack is responsible for making the proportionality judgment The calculus may be affected somewhat if the enemy has failed to carry out his duty to separate his troops and equipment from noocorubatants and civilian property since in such circumstances the defender must shoulder much of the blame for any collateral damage that results A corollary of the principle of proportionality is that the attacker has a responsibility to take reasonable steps to find out what collateral damage a contemplated attack may cause Super uous injury The nations have agreed to ban certain weapons because they cause super uous injury Among these are dumdum bullets projectiles lled with glass or other nondetectahle fragments poisoned weapons and laser weapons speci cally designed to cause permanent blindness to uneahanced vision lodiscriminate weapons The nations have agreed to ban certain other weapons because they cannot be directed with any precision against combatants Among these are bacteriological weapons and poison gas - Pez dy The law ofwar provides certaiu visual and electronic symbols to identify persons and property that are protected from attack Among these are prisoners of war and prisoner of war camps the wounded and sick and medical personnel vehicles aircra and vessels Any misuse of theseeprotected symbols to a lawful military target from attack constitutes the war crime of per dy Suppression of such acts is necessary to preserve the effectiveness of such symbols since known misuse may lead the combatants to disregard them For similar reasons it is unlawful to feign surrender illness or death to gain an advantage in combat as well as to broadcast a false report ofa ceasew re or anuistice Neutrality Nations not engaged in a con ict may declare themselves to be neutral A neutral nation is entitled to immunity from attack by the belligerents so long as the neutral nation satis es its obligation not to assist either side If a neutral nation is unable or unwilling to halt the use of its territory by one of the belligereuts in a manner that gives it a military advantage the other belligerent may have a right to attack its enemy in the oeutral s territory There is considerable support for the argument that the concept of neutrality has no application during a con ict in which one of the belligerents is a nation or coalition of nations authorized by the UN Security Council to use armed force to protect or restore international peace and security This conclusion is based upon Article 49 of the Charter which provides The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council In other situations however as when a nation uses armed force in iodividual or collective without the bene t of a Security Council mandate it would appear that nations not involved in the con ict retain the option of declaring themselves to be neutral B Application to Information Operations It is by no means clear what information operations techniques will end up being considered to be weapons or what kinds of information operations will be considered to constitute sinned con flict On the other hand those issues may not end up being particularly important to the analysis of law of war issues lfthe deliberate actions of one belligerent cause injury death damage and to the military forces citizens and property of the other belligerent those actions are likely to be judged by applying traditional law of war principles - Distinction of combatants from noncotnbatants This rule grew up when combatants could see each other and make a judgment of whether or not to open re based in part on whether or not the individual in the sights wore an enemy uniform When the unit of combat came to be a vessel tank truck or aircraft it became more important that such vehicles be properly marked than that their occupants wear a distinctive uniform lfa computer network attack is launched from a location far otn its target it may be ofno practical significance whether the combatant is wearing a uniform Nevertheless the law of war requires that lawful combatants be trained in the law of war that they serve under effective discipline and that they be under the of of cers responsible for their conduct This consideration argues for retaining the requirement that combatant information operations during international armed con icts be conducted only by members of the armed forces If combatant acts are conducted by unauthorized persons their government may be in violation of the law of war depending on the circumstances and the individuals concerned are at least theoretically subject to criminal prosecution either by the enemy or by an international war crimes tribunal The long-distance and anonymous nature of computer network attacks may make detection and prosecution unlikely but it is the rmly established policy of the United States that US forces will fight in full compliance with the law of war Military necessity In developed nations both military and civilian in astiuctutes are vulnerable to computer network attacks During an armed con ict virtually all military infrastructures will be lawful targets but purely civilian in 'astructures must not be attacked unless the attacking force can demonstrate that a de nite military advantage is expected from the attack Stock exchanges banking systems universities and similar civilian in astructurcs may not be attacked simply because a belligerent has the ability to do so In along and protracted con ict damaging the enemy s economy and research and development capabilities may well inhibit its war effort providing a lawful basis on which to target such capabilities In a short and limited con ict however it would be hard to articulate any expected military advantage from attacking purely economic targets Targeting analysis must be conducted for computer network attacks just as it traditionally has been conducted for attacks using traditional weapons Proportionality During Desert Storm one of the earliest targets of the coalition bombing campaign was the electrical power system in Baghdad Considering the important military uses being made of electricity from that system it was clearly a lawful military target The Iraqi government then made a public pronouncement that the coalition s attack on the city s electrical power system constituted an act of attempted genocide The logic of this position was that the city s sewage system depended on electric pumping stations so when the electricity went out the sewage system backed up and created a threat of epidemic disease No one took this claim very seriously but this incident highlights the fact that when an attack is made on an infrastructure that is being used for both military and civilian purposes the commander will not be in a proper position to weigh the proportionality ofthc expected military advantage against the foreseeable collateral damage unless the commander has made a reasonable effort to discover whether the system is being used for civilian purposes that are essential to public health and safety This principle operates in exactly the same way whether the attack is carried out using traditional weapons or in the form of a computer network attack As stated above the law of war places much of the responsibility for collateral damage on a defending force that has failed to properly separate military targets from noncomhatants and civilian property When military of cials decide to use civilian infrastructure for military purposes or vice-verse they ought to consider the fact that such action may make that in 'astructure a lawful military target There may be no choice as when military tra ic has to move on civilian highways and railroads There may be little alternative to military use of civilian communications systems since it is impractical to put into place dedicated military communications systems that have sufficient capacity to carry all military communications Where there is a choice however military systems should he kept separate from infrastructures used for essential civilian purposes Military command and control systems have long been recognized as l3W 1l military targets Civilian media generally are not considered to be lawful military targets but circumstances may make them so In both Rwanda and Somalia for example civilian radio broadcasts urged the civilian population to commit acts of violence against members of other tribes in the case of Rwanda or against UN authorized forces providing humanitarian assistance in the case of Somalia When it is determined that civilian media broadcasts are directly interfering with the accomplishment ol a military force s mission there is no law of war objection to using the minimum necessary force to shut them down The extent to which force can he used for purely operations purposes such as shutting down a civilian radio station for the sole purpose of undermining the morale ofthc civilian population is an issue that has yet to he addressed authoritatively by the international community - Super uous injury We are not aware that any weapon or device yet conceived speci cally for use in information operations has any potential for causing super uous injury but new systems should always be reviewed with an to their potential for causing catastrophic and untreatable injuries to human hein gs to an extent not required by military necessity lndiscriminatc weapons The prohibition on indiscriminate weapons may apply to in formation operations techniques such as malicious logic as when malicious logic launched against a military information system spreads to other information systems being used to provide essential services to noncombatantsl It might also apply if malicious logic spreads to information systems belonging to neutral or friendly nations Finally it might be applied indirectly if the consequence of a computer network attack is to release dangerous forces such as opening the oodgates of a dam causing an oil re nery in a populated area to explode in flames or causing the release of radioactivity - Per dy It may seem attractive for a combatant vessel or aircraft to avoid being attacked by broadcasting the agreed identi cation signals for a medical vessel or aircra but such actions would be a war crime Similarly it might be possible to use computer morphing techniques to create an image of the enemy s chief of state informing his troops that an armistice or cease re agreement had been signed If false this would also be a war crime - Neutrality If a neutral nation permits its information systems to be used by the military forces of one of the belligercuts the other belligerent generally has a right to demand that it stop do'mg so If the neutral relirses or if for some reason it is uaable to prevent such use by a belligerent the other belligerent may have a limited right ofsel dcfense to prevent such use by its enemy It is quite foreseeable for example that a belligerent might demand that a neutral aatioa not provide satellite imagery of the belligerent s forces to its enemy or that the neutral cease providing weather information or precision navigation services There appears however to be a limited exception to this principle for communications relay systems The primary international agreement conceming neutrality the 1907 Hague Convention Reapecting the Rights and Duties ofNerrtrol Powers and Persons in Case of War on Land to which the United States is a party provides in Articles 8 and 9 that neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wheless telegraph apparatus belonging to it or to Companies or private individeals so long as such facilities are provided impartially to both belligerents The plain language of this agreement would appear to apply to communication satellites as well as to groundwbased facilities There is nothh ig in this agreement however that would suggest that it applies to systems that generate information rather than merely relay communications These would include the satellite imagery weather and navigation systems mentioned above as well as other kinds of intelligence-producing systems such as signals intelligence and hydrophonic systems For example ifa belligerent nation demanded that the US government deny GPS navigation services to its enemy and if the US were unable or unwilling to comply the belligerent may have the right to take necessary and proportional acts in self defense such asjammin the GPS signal in the combat area International consortia present special problems Information systems built around space-based components require such huge investments and access to such advanced technology that even developed nations prefer to share the costs with other nations Where an international communications system is developed by a military alliance such as NATO few neutrality issues are likely to arise Other international consortia however provide satellite communications and weather data that are used for both civilian and military purposes and they have a breadth of membership that virtually guarantees that not all members of the consortium will be allies in future con icts Some curreut examples are INTELSAT INMARSAT ARAB SAT EUTELSAT and EUMETSAT NATO operations in the Federal Republic of Yugoslavia in the Spring of l999 present a striking case in which EUTELSAT the majority ofwhosc membership is comprised of NATO members after two months of the bombing campaign agreed to stop broadcasting Serbian television programs hostile to the NATO mission The broadcasting at issue materially contributed to the campaign of Serbian human rights violations and thus was deemed inconsistent with EUTELSAT principles Some readers may recall that there was an issue among the members ofthe INMARSAT consortium providing mobile communications services as to what use could be static oi tlie system by the members military forces under a provision of the MWSAT agreement stating that the mobile communications service provided by the system could be used exclusively for peaceful purposes This issue has largely disappeared because of the recent privatization of the TNMARSAT system The agreements establishing the new privatized system continue to provide that the management and board of the new must have regard to certain principles including acting exclusively for peaceful purposes taking into account the past practices of the Organization and the practice of the Company and that Mite Company shall not exclusively for peace il purposes However this language establishes no enforceable obligation and no legal remedy is provided for any third party A recent opinion by the Of ce of General Counsel of COMSAT which continues to represent the United States in the new INMARSAT notes that neither INMARSAT or INTELSAT have ever denied service to the military forces of a member nation and it concludes envisions no circumstances in which the peace il porposes principle would be invoked as a reason to deny service to the US Department of Defense or units thereof C Assessment There are novel features of information operations that will require expansion and interpretation of the established principles of the law of war Nevertheless the outcome of this process of extrapolation appears to be reasonably predictable The law of war is probably the single area of international law in which current legal obligations can be applied with the greatest con dence to information operations 10 ill LEGAL REGULATION OF THE USE OF FORCE IN A International Law Concerning the Use ofForce amona Nations As discussed above the law of war authorizes a nation engaged in an international armed con ict to employ armed force to attack lawful military targets belonging to the enemy Resolutions of the United Nations Security Council UNSC may also authorize the use of anned force as provided in the UN Charter The focus of this section however is on the application of international law principles in circumstances where there is neither a state of armed conflict nor a UNSC mandate Lg in peacetime including the conduct of military operations other than war An annotation of the manner in which international law on the use of force among nations is likely to apply to peacetime computer intrusions will serve three distinct purposes 1 it will enable a government that is resolved to conduct itselfin scrupulous compliance with international law to avoid activities that are likely to be regarded by the target nation and the world community as violations of international law 2 it will enable a government contemplating activities that might be considered to violate international law to weigh the risks of such actions and 3 it will enable a government that is the victim of an information attack to identify the remedies afforded to it by international law including appeals to the Security Council the use of force in self-defense and other selflhelp remedies not involving the use of force The frequently heard queStion Is a computer network attack an act of war invokes an obsolete concept not mentioned in the UN Charter and seldom heard in modem diplomatic discourseviolation of another nation s rights under international law that is so egregious that the victim would be justi ed in declaring war Declarations of war have fallen into disuse and the act ofwar concept plays no role in the modern international legal system in any event signi cant sanctions may follow from much less serious violations of another nation s rights that would not be regarded as acts of war The members of the United Nations have agreed in Article 2 4 of the UN Chatter to refrain in their intematioual relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations This obligation is elaborated in the Declaration on Principles oflntemational Law Concerning Friende Relations and Cooperation among tales in Accordance with the Charter of the United Nations General Assembly Resolution 2625 1970 which provides in part - war of aggression constitutes a crime against the peace for which there is responsibility under international law States have a duty to refrain om acts of reprisal involving the use of force ll livery State has the duty to rc ain from organizing instigating assisting or participating in acts of civil strife or terrorist acts in another State or aoquiescing in organized activities Withio its territory directed towards the commission of such acts when the acts referred to in the present paragraph involve a threat or use of force Notltiog in the foregoing paragraphs shall be coostrocd as enlarging or diminishing in any way the scope oftho provisions ofthe Charter concerning cases in which the use of force is lawful NOTE The United States has o cs expressed the View that most General Assembly resolutions are only reoommeodations but that in exceptional cases particular General Assembly resolutions that are meant to be declaratory ofintematiooal law are adopted with the support of all members and are observed by the practice of states are persuasive evidence international law on a particular subject Representatives of the United States have on several occasions publicly endorsed the Declaration on Friendly Relations as one of the few General Assemth resolutions that the United States regards as an authoritative restatement of customary international law at least until the practice of states fails to demonstrate that they consider its principles to be legally binding in its 1974 De nition Resolution the General Assembly further provided Article 1 Aggression is the use of armed force by a State against the sovereignty territorial integrity or political independence ofaitothct State or in any other masher inconsistent with the Charter of the United Nations as set out in this De nition - Article 2 The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may in confonnity with the Charter conclude that a determination that so act of aggression has been committed would not be justi ed in the light ofothcr relevant circumstances including the fact that the acts concerned or their consequences are not ofsuf cient gravity - Article 3 Any of the following acts regardless of a declaration of war shall subject to and in accordance with the provisions ofAniclc 2 qualify as an act of aggression The invasion or attack by the armed forces of a State of the territory of another State or any military occupation however temporary resulting from such invasion or attack or any annexation by the use of force of the territory of another State or part thereof Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State The blockade of the ports or coasts ofa State by the armed forces of another State An attack by the armed forces ofa State on the land sea or air forces or marine and air fleets ofaoother State 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 is the agreement or any extension of their presence in such territory beyond the termination of the agreement l2 The action ofa State in allowing its territory which it has placed at the disposal of another State to he used by that other State for pometrating an act of aggression against a third State The sending by or on behalf ofa State of armed bands groups irreguler 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 NOTE The United States delegation noted that the test of this resolution re ected hard bargaining among the 35 states that were members of the Special Committee on the Question of De ning Aggression After the resolution was adopted by the General Assembly W ithOttl a vote the US delegation stated the View that the resolution did not establish rights and obligations of states but that it was likely to provide useful guidance to the Security Council Translated this statement appears to indicate that the United States does not regard the language of this resolution as a completely authoritative restatement of customary international law but that its essential concepts are correct In any event the question of what constitutes an act of aggression is unlikely to be as llSB ll for our proposes as is the question what kinds of hiformation attacks are likely to he considered by the world community to be armed attacks and uses of force Turning to the question of when force may lawfully be used by nations the United Nations Charter provides that in some circumstances the Security Council may authorize the use of coercive measures including military force Article 39 The Security Council shall determine the existence of any threat to the peace breach of the peace or act of aggression and shall make recommendations or decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security - Article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions and it may call upon the Members of the United Nations to apply such measures These 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 - Article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate it may take such action by air sea or land forces as may be necessary to maintain or restore international peace and security Such action may include demonstrations blockade and other operations by air sea or land forces of Members of the United Nations Perhaps most signi cantly the Charter also provides in Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security Read together these provisions of the Charter and the related General Assembl r resolutions provide a myriad of terms and concepts concerning prohibited uses of force among nations including the threat or use of force acts of aggression tars of aggression the use of armed force acts of armed force invasion attack bombardment and blockade These acts may be directed at the victim nation s territorial integrity or political independence or against its military forces or marine or air eets They all have in common the presence of troops and the use of traditional military weapons The question before us is how they are lilter to apply to computer network attacks Further when one looks for provisions describing a sanction or remedy only two provisions present themselves the authority of the Security Council to authorize various sanctions including the use of the members armed forces when it nds there is a threat to the peace breach of the peace or act ofaggressionf and Article 51 s recognition of the inherent right of self defense ifao armed attack occurs There is no requirement that a threat to the peace take the form of an armed attack a use of force or any other condition speci ed in the charter The Security Council has the plenary authority to conclude that Virtually any kind of conduct or situation constitutes a threat to the peace in response to which it can authorize remedial action of a coercive nature Nothing would prevent the Security Council from nding that a computer network attack was a threat to the peace if it determined that the situation warranted such action It seems unlikely that the Security Council would take action based on an isolated case of state sponsored computer intrusion producing little or no damage but a computer network attack that caused widespread damage economic disruption and loss of life could well precipitate action by the Security Council The debate in such a case would more likely center on the o ender s intent and the consequences of the offending action than on the mechanism by which the damage was done The language of Article 51 on the other hand requires an armed attack A close parsing of the language would tend to limit its effect to attacks and invasions using traditional weapons and forces On the other hand there is a well-established View that Article 51 did not create the right ofselfldefense but that it only recognized a preexisting and inherent right that is in some respects broader than the language of Article 5 1 History has also seen the emergence of such derivative doctrines as anticipatory self- defense and self-defense in neutral territory both of which have been relied upon by the United States in certain circumstances Anticipatory sel defcnse permits a nation to strike the rst blow if it has good reason to conclude that it is about to be attacked The JCS Standing Rules of Engagement implement this doctrine in their authorization of the use of force in reSpouse to a demonstration of hostile intent by an adversary Sel defense in neutral territory is the right to use force to neutralize a continuing threat located in the territory of a neutral state but not acting on its behalf when the neutral state is unable or unwilling to ful ll its responsibility to prevent the use of its territory as a base or sanctuary for attacks on another nation This doctrine has venerable roots in US foreign and defense policy dating at least to the Caroline incident In December 1837 Canada which was still a British colony was fighting an insurrection More than 1 000 insurgents were encarnped on both the Canadian and US sides of the Niagara River A small steamer the Caroline was used by the insurgents to travel across 14 and along the river On the night of December 19 183 7 a patty of British troops crossed the Niagara and attacked the Carolina in the port of Schlosser New York setting the vessel on re and casting it adrift over the Niagara Falls Que US citizen was killed on the dock another was missing and several others were wounded The United States demanded reparations The British Government responded that it had acted in selfldefensc Secretary of State Daniel Webster agreed that the doctrine of self defense in neutral territory was a valid principle of international law but asserted that it did not apply in the circumstances of this case Britain continued to maintain that its action was legal but nonetheless apologized for the invasion of U S territory No reparations were paid In 1986 the United States bombed Libya as a response to Libya s continuing support for terrorism against US military forces and other US interests In June 1993 11 8 forces attacked the Iraqi military intelligence headquarters because the government of Iraq had conspired to assassinate former President Bush In August 1998 US cruise missiles struck a terrorist training camp in Afghanistan and a chemical plant in Sudan in which chemical weapons had been manufactured The rationale articulated for each of these actions was self defense Acts of sel - defense must satis r the tests of necessity and proportionality but there is no requirement that an act of selfldefense use the same means or target the same type of object or otherwise be symmetrical to the provocation or that the action taken be contemporaneous with the provocation particularly if the attacker is responding to a continuing course of conduct B Acts not Amounting to the Use of Force In its 1949 decision in the Corfu Channel Case the ruled that the intrusion of British warships into Albanian territorial waters which it found to have been without justi cation under any principle of international law constituted a violation ofAlbauia s territorial sovereignty The result seems to be recognition of a general international law of trespass although the remedy may be limited to a declaratory judgment that the victim s rights have been violated The lCJ s predecessor the Permanent Court of International Justice in its 1928 Qhorzow Factory Decision declared that reparations were due to any nation whose rights under international law were violated by another nation This concept is often referred to as the doctrine of state responsibility 'l'herc is also a general recognition of the right of a nation whose rights under international law have been violated to take countermeasures against the o ending state in circumstances where neither the provocation nor the respou se involves the use of armed force For example an arbitral tribunal in 1978 ruled that the United States was entitled to suspend French commercial air ights into Los Augeles after the French had suspended US commercial air ights into Paris Discussions of the doctrine of countermeasures generally distinguish between countermeasures that would otherwise be violations of treaty obligations or of general principles of international law in effect reprisals not involving the use of armed force and retorsions actions that may be un iendly or even damaging but which do not violate any international legal obligation The use ofcountermcasurcs is subject to the same requirements of necessity and proportionality as apply to self-defense Some examples ofcountenneasures that have been generally accepted as lawful are the suspension of diplomatic relations trade and 15 communications embargoes cutting oil foreign aid blocking assets belonging to the other nation and prohibiting travel to or from the other nation The international law doctrines of selfndefeuse reprisal and countermeasures all require that a nation invoking them do so with the intent ofprotecting itself against further harm either by directly blocking further houile acts against itself or by persuading its torrnerrtor to cease and desist The motive must be protection of the nation or its citizens or other national interests from further harm the satisfaction of extracting revenge by itself is not acceptable These doctrines also demand that a state do only what is necessary and proportional in the circumstances In summary it appears that one trend in international law is to provide some kind of remedy for every violation ofa nation s rights under international law Some of these remedies are in the nature of sel help such as armed sel defense the interruption of commercial or diplomatic relations or public protest Other remedies maybe sought from international institutions such as an hupositiou of coercive measures by the Security Council or a declaratory judgment or an order to make reparations from an international tribunal The issue for the victim is to choose the most effective available sanction The issue for a nation contemplating an action that may be considered to violate the rights of another nation under international law is to accurately predict what sanctions such action may provoke C Application to Computer Network Attacks There is no way to be certain how these principles of international law will be applied by the international community to computer network attacks As with other developments in international law much will depend on how the nations and international institutions react to the particular circumstances in which these issues are raised for the rst time Ifwe were to limit ourselves to the language of Article 51 the obvious question would be Is a computer network attack an armed attack that justi es the use of force in self-defense Ifwe focused on the means used we might conclude that electronic signals imperceptible to human senses don t closely resemble bombs bullets or troops On the other hand it seems likely that the international community will be more interested in the consequences of a computer network attack than in its mechanism It might be hard to sell the notion that an unauthorized intrusion into an unclassi ed information system without more constitutes an armed attack On the other hand if a coordinated computer network attack shuts down a nation s air traf c control system along with its banking and nancial systems and public utilities and opens the oodgates of several dams resulting in general ooding that causes widespread civilian deaths and property damage it may well be that no one would challenge the victim nation if it concluded that it was a victim of an armed attack or of an act equivalent to an armed attack Even if the systems attacked were uaclassi ed military logistics systems an attack on such systems might seriously threaten a nation s security For example corrupting the data in a nation s computerized systems for managing its military iel spare parts transportation troop mobilization or medical supplies may seriously interfere with its ability to conduct military operations in short the consequences are likely to be more important than the means used if the international community were persuaded that a particular computer network attack or a pattern of such attacks should be considered to be an armed attack or equivalent to an 16 attired attack it could seem to follow that the victim nation would be entitled to respond in self defense either by computer network attack or by traditional military means in order to disable the equipment and personnel that were used to mount the offending attack In some circumstances it may be impossible or inappropriate to attack the speci c means used in an attack gg because the Specific equipment and personnel used cannot be reliably identi ed or located or an attack on the speci c means used would not be effective or an effective attack on the speci c means used might result in disproportionate collateral damage Where the speci c means cannot be effectively attacked any legitimate military target could be attacked including intelligence and military leadership targets as long as the purpose of the attack is to dissuade the enemy from mher attacks or to degrade the enemy s ability to undertake them There has been some support for the proposition that a nation has an inherent right to use force in sel defense against acts that do not constitute a classic armed attack This is supported by the inclusion in the General Assembly s de nition of aggression of acts that do not entail armed attacks by a nation s armed forces such as the unlawful extension of the presence of visiting forces or allowing a nation s territory to be used by another state for perpetratiug an act of aggression against a third State See pages 14-15 above U S practice also support this position as demonstrated in the 1986 bombing of Libyan command and leadership targets to persuade Libya to stop sponsoring terrorist attacks against US interests and in the 1993 attack on the lraqi military intelligence headquarters to persuade Iraq to desist om assassination plots against former President Bush A contrary View was expressed in the International Court of Justice s 1986 ruling in Nicaragua v US that the provision of arms by Nicaragua to the le ist rebels in El Salvador did not constitute an armed attack on El Salvador so it could not form the basis of a collective self defense argument that would justify armed attacks in response such as laying of mines in Nicaraguan waters or certain attacks on Nicaraguan ports oil installations and a naval base acts that were imputable to the United States The Court also said it had in suf cient evidence to determine whether certain cross border incursions by Nicaraguan military forces into the territory of Honduras and Costa Rica constituted armed attacks The extent to which Nicaragua s conduct would justify El Salvador and its ally the United States in responding in ways that did not themselves constitute an armed attack was not before the Court The opinion of the court nevertheless provides some support for the preposition that the provocation must constitute an armed attack before it will justify an armed attack in sel defense It seems safe to say that the issue of whether traditional armed force may be used in selfadefeuse in response to provocations that are not technically regarded as armed attacks is far om settled and that the positions taken by states may be sharply in uenced by the nature ofthe events concerned together with all attendant policy and political considerations By logical implication to the extent that a nation chooses to respond to a computer network attack by mounting a similar computer network attack of its nun the issue of whether the initial provocation constituted an armed attack may become a tautology Ifthe provocation is considered to be an armed attack the victim may be justi ed in launching its own armed attack in self-defense If the provocation is not considered to be an armed attack a similar response will also presumably not be considered to be an armed attack Accordingly the question of the availability of the inherent right of self defense in response to computer network attacks comes into sharpest focus when the victim of a computer network attack considers acting in sel defeuse using traditional military means The issue may also arise if the response causes 17 disproportionately serious e ects gig if a state responded to a computer network attack that caused only minor inconvenience with its own computer network attack that caused multiple deaths and injuries As in all cases when a nation considers acting in the nation considering such action will have to make its best judgment on how world opinion or perhaps a body such as the International Court of Justice ICJ or the UNSC is likely to apply the doctrine of selfudefease to electronic attacks As with many novel legal issues we are likely to discover the answer only om experience it seems beyond doubt that any unauthorized intrusion into a nation s computer systems would justify that nation at least in taking self help actions to expel the intruder and to secure the system against reentry An unauthorized electronic intrusion into another nation s computer systems may very well end up being regarded as a violation of the victim s sovereignty It may even be regarded as equivalent to a physical trespass into a nation s territory but such issues have yet to be addressed in the international community Furthermore the act of obtaining unauthorized access to a nation s computer system creates a vulnerability since the intruder will have had access to the information in the system and he may have been able to corrupt data or degrade the operating system Accordingly the discovery that an intrusion has occurred may call into question the reliability of the data and the operating system and thus reduce its utility if an unauthorized computer intrusion can be reliably characterized as intentional and it can be attributed to the ageuts of another nation the victim nation will at least have the right to protest probably with some con dence of obtaining a sympathetic hearing in the world community D An Active Defense Computer Network Attacks A persistent foreign intruder who gains repeated unaudrorized entry into a nation s computer systems by defeating a variety of security measures or who gains entry into a number of computer systems may demand a different response Such behavior may indicate both that there is a continuing danger and that coercive measures are necessary to stop the intruder s pattern of conduct Similarly there may be a right to use force in self defense against a single foreign electronic attack in circumstances where signi cant damage is being done to the attacked system or the data stored in it when the system is critical to national security or to essential national infrastructures or when the intruder s conduct or the context of the activity clearly manifests a malicious intent Ifit is capable ofdoiug so in such circumstances the victim nation may be justi ed in launching a computer network attack in response intended to disable the equipment being used by the intruder Disabling one computer may or may not defeat a state-sponsored operation It may however serve as a shot across the bow warning of more serious consequences if the o euding behavior continues It is also an action unlikely to come to public attention unless one of the two governments announces it making it a potentially useful measure for con ict avoidance Conducting a responsive computer network attack as a measure of self-defense against foreign computer network attacks would have the major advantage that it would minimize issues of proportionality which would be more likely to arise if traditional military force were used such as ring a cruise missile at the building from which a computer network attack is being conducted Either response would likely be analyzed on the basis of the traditional criteria of necessity and proportionality l8 lfit is impractical to focus an attack on the equipment used in the provocation any legitimate military target may be attached The primary value of being able to demonstrate a nexus between the provocation and the response is to be able to argue the likely therapeutic effect of the force used in selfldefense As a practical matter the next most attractive target after the equipment used in the provocation may be the offending nation s communications systems or its military or intelligence chain of command The consequences of a large'scale campaign of computer nenyork attacks might well justify a large-scale traditional military response As stated above the discussion up to this point has assumed we know who an intruder is and that we are con dent in characterizing his intent ln practice this is seldom the case at least in the early stages of responding to computer intrusions The above legal analysis may change if the identity and location of an intruder is uncertain or '1st intent is unclear identification of the originator of an attack has often been a di icult problem especially when the intruder has used a number of intermediate relay points when he has used an anonymous bulletin board whose function is to strip away all information about the origin of messages it relays or when he has used a device that generates false origin information Progress has been made however in solving the technical problem of identifying the originator of computer messages and reliable identification of the computer that originated a message may soon be routinely available Attribution may also be provided by intelligence from other sources or it might be reliably inferred from the relationship ofthe attack to other events Locating the computer used by the intruder does not entirely solve the attribution problem however since it may have been used by an unauthorized person or by an authorized user for an unauthorized purpose A parent may not know that the family computer is being used for unlawful attacks on government computer systems Universities businesses and other government agencies may be similarly unaware that their computer systems are being misused The comer of a computer system may have some responsibility to make sure it is not being used for malicious purposes but the extent of such responsibility and the consequences of failing to meet it have apparently not been addressed in any US or foreign statute or court decision These considerations should make us cautious in implementing any active defense system for government computer systems Nevertheless circumstances may arise in which the urgency of protecting critical information systems from serious damage may warrant adulation of a properly designed active defense Similarly characterization of an intruder s intentions may be dif cult Nevertheless such factors as persistence sophistication of methods used targeting of especially sensitive systems and actual damage done may persuasively indicate both the intrudcr s intentions and the dangers to the system in a manner that would justify use of an active defense As with attribution there may be useful intelligence on this issue from other sources or it may be possible to reliably infer the intent of the intruder from the relationship of the attack to other events A determination that an intrusion originates in a foreign country would be only a partial solution to the attribution problem since the attack may or may not be state sponsored State 19 sponsored attacks may well generate the right of self defense State sponsorship might be persuasively established by such factors as signals or human nttelligence the location of the offending computer within a state-controlled facility or public statements by officials in other state Sponsorship may be convincingly inferred from such factors as the state of relationships between the two countries the prior involvement of the suspect state in computer network attacks the nature of the systems attacked the nature and sophistication of the methods and equipment used the effects of past attacks and the damage which seems likely horn future attacks Attacks that cannot be shown to be state-sponsored generally do not justify acts ofsei defense in another nation s territory States jealously guard their sovereign prerogatives and they are intolerant of the exercise of military law-enforcement and other core sovereign powers by other states within their territory without their consent When individuals carry out malicious acts for private purposes against the interests of one state from within the territory of a second state the aggrieved state does not generally have the right to use force in sel defense against either the second state itself or the o endin individual Even if it were possible to conduct a precise computer network attack on the equipment used by such individual actors the state in which the effects of such an attack were felt if it became aware of it could well take the position that its sovereignty and territorial integrity had been violated The general expectation is that a nation whose interests are damaged by the private conduct of an individual who acts within the territory of another nation will notify the government of that nation and request its cooperation in putting a stop to such conduct Only if the requested nation is unwilling or unable to prevent recurrence does the doctrine of selfwdefense permit the injured nation to act in sclfudefeusc inside the territory of another nation The US cruise missile strikes against terrorists camps in Afghanistan on 20 August 1998 provides a close analogy in which the United States attacked camps belonging to a terrorist group located in the territory of a state which had clearly stated its intention to continue to provide a refuge for the terrorists At some point providing safe re ige for those who conduct attacks against another nation becomes complicity in those attacks At a minimum the offended nation is authorized to attack its tormenters the terrorists As complicity shades into the kinds of active support and direction that are commonly called state sponsorship military and leadership targets of the host state may themselves become law ii targets for acts of sew-defense Attacks on insurgents or on terrorists and other criminals using a neutral nation s territory as a refuge may also be justi ed when the neutral state is unable to satisfy its obligations During the Vietnam war the United States attacked North Vietnamese military supply lines and base camps in Cambodia a er the Cambodian government took the position that it was unable to prevent North Viematn from making such use of its territory This principle might justify using active defense measures against a computer intruder located in a neutral nation if the government of the neutral nation declared it had no way to locate the intruder and make him stop or if its behavior made it clear that it could not or would not act or even ifthe circumstances did not allow time for diplomatic representations to be effective As an analogy it seems unlikely that a nation would complain very loudly if its neighbor nation returned re against a terrorist sniper ring from its territory 20 In seminary the international law of self-defense would not generally jostify acts of active defense across hitemational boundaries unless the provocation could be attributed to an agent of the nation concerned or until the sanctuary nation has been put on notice and given the opportunity to put a stop to such private conduct in its territory and has failed to do so or the circumstances demonstrate that such a request would be futile Nevertheless in some circumstances the National Command Authority NCA might decide to defend US information systems by attacking a computer system overseas and take the risk of having to make an apology or pay compensation to the offended government Among the factors the NCA wonld probably consider would be the danger presented to U S national security from continuing attacks whether immediate action is necessary how much the sanctuary nation would be likely to object and how the rest of the world community would be likely to respond There need be less concern for the reaction of nations through whose territory or communications systems a destructive message may be routed Ifonly the nation s public communications systems are involved the transited nation will normally not be aware of the routing such a message has taken Even if it becomes aware of the transit of such a message and attributes it to the United States there would be no established principle of international law that it could point to as being violated As discussed above even during an international armed con ict international law does not require a neutral nation to restrict the use of its public communications networks by belligerents Nations generally consent to the free use of their communications networks on a commercial or reciprocal basis Accordingly use of a nation s communications networks as a conduit for an electronic attack would not be a violation of its sovereignty in the same way that would be a ight through its airspace by a military aircra A transited state would have somewhat more right to complain if the attacking state obtained unauthorized entry into its computer systems as part of the communications path to the target computer it would he even more offended if malicious logic directed against a target computer had some harm il effect against the transited state s om equipment operating systems or data The possibility of such collateral damage would have to be carefully considered by the state launching any such attack If there were a high potential for such collateral damage to transited systems the weapon might even be considered to be an indiscriminate weapon incapable of being reliably directed against a legitimate target There are at least two ways in which the availability of improved technology may affect the active-defense equation First it might be argued that as a govemment acquires the ability to build better rewalls and other security systems it will be harder to argue that an active defense is htecessary This argument might be raised even if the target government has failed to install all possible technological security measures on the system that is under attack This demanding approach to necessity nds little support in the practice of nations The focus of self defense analysis is on events as they unfold and not as they might have been if different budgeting and acquisition decisions had been made sometime in the past Ifsuch systems are in place however their apparent effectiveness should be taken into account in deciding whether active defense measures are necessary This does not mean that a nation has no right of sel defense where a rst attempted intrusion fails or even when a series of intrusions fail If an attacker is permitted to continue mounting a campaign of such attacks it may learn by trial and error it may employ other capabilities or it may stumble onto a point of vulnerability Just as an infantry unit 2l exercising the right of self-defense may pursue a force that breaks off an attack and attempts to retreat until the attacker ceases to he a threat decisions on taking measures of selfidefense against computer network attacks must take into account the extent to which an attacker continues to present a threat of continuing attacks Another possible implication of a defeader s technological prowess may arise when a nation has the capacity for graduated sel defease measures Some may argue that a nation having such capabilities must select a response that will do minimal damage This is a variant of the argument that a nation possessing precision-guided munitions must always use them whenever there is a potential for collateral damage That position has garnered little support among nations and has been strongly rejected by the United States There is broad recognition that the risk of collateral damage is only one of many military considerations that must be balanced by military authorities planning an attack One obvious consideration is that a military force that goes into a protracted con ict with a policy of always using precision-guided munitions whenever there is any potential for collateral damage will soon exhaust its supply of such munitions Similarly military authorities must be able to weigh all relevant military considerations in choosing a response in sel defense against computer network attacks These considerations will include the probable effectiveness of the means at their disposal the ability to assess their effects and the fragility of electronic means of attack Lg once they are used an adversary may be able to devise defenses that will render them ineffective in the future In the process of reasoning by analogy to the law applicable to traditional weapons it must always be kept in mind that computer network attacks are likely to present implications that are quite di ereut from the implications presented by attacks with traditional weapons These diilerent implications may well yield different conclusions It may be possible to specify certain information systems that are vital to national security both government systems and key civilian infrastructure systems This process should serve both to give such systems high priority for security measures and also to identify a class of systems any attack on which would immediately raise the issue of whether an active defense should be employed This should not of course eliminate consideration of using an active defense against attacks on systems not on such a vital systems list where the circumstances justify such action For example a vigorous attack that threatens to overwhelm an information system not on the Wital systems list but that performs an important national security Function could be a more valid occasion to use active defense measures that would be a trivial and easily defeated attack on a designated vital system A list of vital systems would serve primarily as an alert mechanism that would bring about a prompt high-level evaluation of all the circumstances In addition it would be useful to create a process for determining when the response to a computer intrusion should shift from the customary law enforcement and counterdutelligence modes to a national defense mode Such a process should include l a statement of general criteria to be applied 2 identi cation of of cials or agencies that will be involved in making the decision and 3 procedures to be followed There are of course a variety of treaty obligations that will have to be considered before adopting an active defense against foreign computer network attacks and these will be 22 discussed below There are 3150 a variety ofdemestic legal mneems that will have Id be addressed and these will he discussed in the campaniun assessment ef domestic law issues in in formatien operations E Assessment It is far mn clear the extent to which the cmnmunity will regard campeter attacks as armed attacks or lses of force and how the doctrines of self defense and cauntermeasures will be applied It computer netwerk attacks The outcome will probably depend more an the consequences of such attacks than On their mechanisms The most likely result is an acceptance that a nation subjected to a statesponsered computer network attack can lawfully respond in kind and that in 503136 circumstances it may be justi ed in using traditional military means in selfwdefense Unlese the nations decide to negotiate a treaty addressing cemputer netwerk attacks which seems unlikely anytime in the near future international law in this area will develop thmugh the actions of nations and through the positions the nations adopt publicly as events unfold US of cials must be aware of the implications if their own actinns and statements in this formative period 23 IV SPACE LAW A Introduction International law regulating activities in outer space is important to the information operator because space segments are critical to so many important information systems These systems perform such functions as communications relay imagery collection missile warning navigation weather forecasting and signals intelligence In fact it can be said that at the current stage of space activity the exclusive functions of both military and civilian satellites are to gather and relay information In the conduct of information operations there will be strong imperatives to interfere with the spacohased information systems holonging to an adversary and to defend onc s om Ono approach to attacking space systems is by targeting their ground stations Another approach is to jam or spoof their communications links Such actions are subject to the normal international law principles governing other terrestrial activity Sometimes however it only be more c ectivc to attack the satellite or satellites that form the Space segment ofthc system As we will see activities in space are subject both to general principles of international law and to a number oftrcaty obligations that apply speci cally to Space activities B Space Law Treaties There is probably no other eld ofhuman endeavor that produced so much international law in such a short period Within twenty years after the rst Sputnik launch in 1957 international diplomatic conferences produced four major multilateral Space law treaties Taken together these treaties provide the foundations of existing space law - The Treaty on Principles Governing the Activities ofSrares in the Exploration and Use Of Outer Space including the Moon and Other Celestial Bodies the Outer Space Treaty 1967 - ThexAgreemenr on the Rescue of Astronauts Return of Astronauts and the Return of Objects Launched into Outer Space the Roscoe and Return Agreement 1968 - The Convention on International Liabilioifor Damages Carded by Space Objects the Liability Convention 1972 7726 Convention on the Registration of Objects Launched into Outer Space the Registration Convention 1975 Note There is another treaty called the Moon Agreement of 1979 which the United States has never signed and which has attracted only 9 parties among whom only France is active in space operations In addition several provisions of the 1980 Environmental Modi cation Convention apply to space activity These agreements are not directly relevant to information operations however and they will not be discussed further here 24 The four major space treaties together establish the following principles that are directly relevant to information operations These principles have been so widely accepted that they are generally regarded as constituting binding customary international law even for amt-parties to these agreements - Space is free for exploration and use by all nations It is not subject to national appropriation by claim of sovereignty use occupation or any other means - Activities in space shall be conducted with due regard for the interests of other states States that launch space objects are liable for any damage they may do in space in the air or on the surface of the Earth Different standards of liability are established for damage done to other items in space for which a fault standard applies and damage done on the surface of the Earth and to aircraft in ight for which absolute liability applies - Space activities are subject to general principles of international law including the UN Charter Several conclusions are apparent from these general principles The first is that the rules on the use of force discussed in Section of this paper apply tlly to activities in outer space Among these are that nations are obliged not to use force in their relations with each other unless they are acting in self defense or when authorized to do so by the UN Security Council Once again however as with other forms of information operations one has to consider what actions by or against objects in space will be considered to he uses of force The world community would probably not hesitate to regard as a use of force the destruction ofa satellite by a missile or a laser It would probably react similarly if it could be proven that one nation took over control of another nation s satellite by electronic means and caused it to re its retro rockets and fall out of orbit In such a case the consequences will probably matter more than the mechanism used The reaction of the world community to lesser kinds of interference is hard to predict For example if one nation were able by electronic means to suspend the operations of another nation s satellite for a brief period a er which it returned to service undamaged it seems lilter that the world community would consider such action as a breach of the launching nation s sovereign rightsarmed force One could argue however that this argument is unimportant because the space treaties create a speci c obligation not to interfere with the space activities of other nations and to pay reparations for any damages resulting from such interference This argument appears to have considerable force at least in peacetime During an international armed con ict between the two nations concerned however the law of armed con ict would apply unless it was trumped by the principle of noninterference with space systems Resolution of this issue depends largely on whether the four space treaties will be considered to apply during an armed con ict None of them has any specific provision that indicates whether the parties intended that the agreement apply in wartime There appears to be a strong argument that the principle of noninterference established by these agreements is inconsistent with a state of hostilities at least where the systems 25 oro of Such high military value that there is a drag military imperative for the adversary to be free to interfero with them oven to the extant of dooifoying the satellites in the system As indicated in the diocussioo oftroaty law in the introduction to this paper tho ofthis debate may depend on the circumstances in which it rst arioes in practice Nove hcloss it seems most likely that those ogroomoots will be con sidoiod to be mispondod between tho belligcmnio for the duration ofaoy armed con ict as loos to the extent necessary for the conduct of the con ict lftho priociplo of is regarded as suspended for the period of the con ict it also seems likcly that the liability provisions in these agreements would also bc sooponded a1 loast between the parties This would not however excuse the bolligoroots om liability to neutral nations iftheir actions caused damage to their citizens or property 0 Sooci o Prohibitions ofMilitarv Activities in Some There is a popular notion that military activities in space arc prohibited thai space is a place a little closor to heaven into which the nations have agreed not to introduce weapons and humor con ict There is a germ in this notion supported by high ights of rhetoric in international fora but the existing treaty on military operations in Space are in fact very limited These restrictions are included in both the space troaties listed above and in various arms cooirol agreements The Outer Space Treaty provides that the parties will not place lo orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons ofmoos dostruotioo install such weapoos on celestial bodies the moon planets and asteroids or station such weapons in outer space in any other manner The treaty permits placing in orbit weapons other ban nuclear weapons and other weapons of mass destruction Also the treaty contains no prohibition against nuclear weapons transiting outer space as long as they do not enter into an saith orbit and they do not explode in outer space Tho Outer Space Treaty also prohibits the establishment of military bases the testing of weapons and the conduct of military maneuvers on the moon or other celestial bodies It permits these activities in orbit around the Earth and it other places in outer space Similarly there is no prohibitioo against establishing military space stations or operating other satellites with offensive or dcfonsivo capabilities The Treaty Bowling Nuclear Weapom Tests in rim Afmosphere in Outer Space and Under Water the Limited Test Ban Treaty 1963 prohibits all nuclear explosions in outer space Accordingly a party to this agreement may not lawfully explode a nuclear device in outer space in order to disable ail adversary s satellites by means of the electro maguetio pulse generated by a nuclear explosion or by its other re ects A natioo operating its own satellite systems is unlikely to take such an action in any event since its own satollitcs would be subject to the some c 'oots as those belonging to its adversary The Treaty on lire Limitation Aifissile Systems the ABM Treaty 1972 provides that no paxty may develop test or deploy Spacc based ABM systoms or components 26 Under a 1997 theater missile defense TMD agreement not yet rati ed by the Senate the United States and Russia have agreed not to place in space theater missile defense interceptor missiles or Space-based components based on other physical principles whether or not part of a system that are capable ofsobstituting for such interceptor missiles A number of arms control agreements provide that no party will interfere with the others national technical means of veri cation Translated this means no interference with the orbiting imaging systems used to monitor the strategic arms of another party Read together these agreements permit the development testing and deployment of anti- satellite and satellite-defense systems unless they involve either the stationing or testing of nuclear devices in outer space or the orbiting that also have ABM or ATM capabilities Their use is subject only to the general principles of international law relating to the tree of force 2 the principle of non-interference with the space systems of other nations in peacetime subject to the right to use force in self-defense and when authorized by the UN Security Council 3 the law of war during international armed con icts and 4 obligations under relevant arms-control agreements not to interfere with other parties national technical means ofveri cation This leaves a very broad range of permissible spacecontrol systems and operations lo a non-nuclear con ict the parties might very well determine that the treaty prohibitions against placing nuclear weapons in orbit against exploding nuclear devices in outer space and against placing ABM components and ATM iltterceptors in orbit remain consistent with a state of limited armed con ict Those obligations may well serve to avoid escalation of the conflict to the nuclear level The parties conclusions as to the obligation not to interfere with other parties national technical means of veri cation will probably depend to a great extent on the circumstances of the con ict D Domestic Law and Policy A federal statute 18 USC 1367 makes it a felony to intentionally or maliciously interfere with a communications or weather satellite or to obstruct or hinder any satellite transmission The application of this statute to national security information operations is discussed in the companion assessment ofdontestic legal issues US domestic policy on developing space control capabilities has been inconsistent at best By the early 19805 the U S Air Force had developed an antiusatcllite missile with an explosive warhead that was carried aloft by an ghter and launched at high altitude A test ofthis system was conducted in 1985 against a US satellite whose useful life had expired Congress soon therea er decreed that no appropriated funds were to be used to test any weapon against an object in orbit In 1987 the USAF program was terminated At the time it appeared that members of Congress voting for the ban had done so for a variety of reasons among which were 1 support for the broad principle that space should be free from human con ict 2 dismay that the rst test had generated 285 pieces of trackable space debris 3 concern that further testing of an antiwsatellite capability might interfere with continuing strategic arms control 27 negotiations and 4 concern that the United States should not press ahead with testing an anti satellite system when the nation had yet to decide where its own long-term interests lie Concerning this last point it was obvious that there is a military interest in being able to defend your own space systems and having the ability to interfere with your adversary s but there was also a contrary consideration that the loug term interests of the United States as the nation that depends most heavily on space systems may be better served by promoting the development of a regime of international law that prohibits any interference by one nation with the space systems of another and inhibits the acquisition of the capability to do so That fundamental debate has yet to be pursued to a de nitive conclusion Later when public attention was drama to the possible use of lasers as anti-satellite weapons Congress prohibited the use of appropriated funds to illuminate any object in orbit with a laser This restriction was removed in 1995 in October 1997 the U S Army conducted a test it which it illuminated an Air Force satellite nearing the cud of its useful life with the MIRACL laser located at White Sands New Mexico Despite public armouncements that the purpose of the erqicrimeot was purely defensive in nature to observe the e ccts of the laser on the satellite s optical sensors in order to better protect us satellites from deliberate or accidental laser illumination a public iror ensued Shortly thereafter President Clinton exercised his short-lived item veto authority to delete funds from the FY 98 DOD Authorization Act for development of an Army Kinetic Energy AuthSatellite Missile and two other projects that he considered to be related to space control Congress approved additional funds for space control projects in the FY 1999 Del Authorization Act and urged expenditure of the FY 98 funds that were restored after the Supreme Court ruled that the item veto was unconstitutional At this point it seems fair to say that the Uuited States has not arrived at a consensus on the fundamental policy issues concerning space control it seems likely for the near xture that the development of such systems will continue with renewed controversy to be expected as soon as a decision is imminent on the deployment or even advanced testing of an Operational system E International Efforts to Control Weariouizatioo of Space Over the last decade there has been strong support in the UN General Assembly for negotiation in the Conference on Disarmament CD of a draft treaty banning weapons in space The most recent action by the General Assembly was its adoption on 4 December 1998 by a vote of 165-04 of a resolution entitled Preveutiou of an arms race in outer space This resolution calls for by the CD ofau Ad Hoc Committee on the Prevention of an Arms Race in Outer Space that existed in prior years Canada and Egypt are actively promoting consideration of a no weapons in space treaty in the Cl but so far they have garnered little active support among the other CD members Both Russia and China have also announced their support for negotiations to ban Xveapouizatiou of space but neither has advanced a speci c proposal with much Vigor In summary there appears to be widespread lukewarm support for the general idea of a treaty banning an arms race in space but the subject enjoys a low priority at the moment and no draft treaty has garnered signi cant support This may all change if and when a nation or nations are known to have deployed operational space control systems or are on the verge ofdoiug so 28 Chinese and Russian support for a ban on Weapoaization of space is seer in some quarters as ironic sioce China is reported to be developing a grouodmbased anti saiellite laser system and Russia is the only nation known to have once had arr operational anti-satellite missile There have been a number of reports that the Soviet Union developed a co orbital that was launched into orbit where it maneuvered close eaough to a target satellite to destroy the target by exploding Reportedly the Soviet system was tested against objects in space 20 times and became operational in 1973 Russia consistently denied that it had tested or deployed such a system until September 1997 when press reports indicate that President Yeltsin said a letter to President Clinton that Russia at onetime possessed an anti satellite capability but that it had since renounced it F Assessment There is no legal prohibition against developing and using space control weapons whether they would be employed in orbit from an aircraft in ight or from the Earth s surface The primary prohibition is against weapons that entail the placing of nuclear weapons in orbit or that would employ a nuclear explosion in outer space The use of space control systems in peacetime would be subject to both the general principles of international law and to treaty obligations not to interfere with other nations space systems and national technical means of verification These obligations would probably be during an international armed con ict during which the parties conduct would be governed primarily by the law of war US domestic policy on space control however is at best unsettled 29 V COMMUNICATIONS LAW A International Communications Law International communications law consists primarily of a number ofbilateral and multilateral communications treaties The most signi cant ofthese treaties is the International Telecommunications Convention of 1982 ITC which has over 140 parties and which became effective for the United States in 1986 This agreement often referred to as the Nairobi Convention is the latest in a series of widely adhered to multilateral telecommunications conventions signed in this century which were preceded by multilateral agreements in the late 1800s providing protection for submarine cables The current series of agreements establishes the international Telecommunication Union ITU which has the status of a specialized agency of the United Nations and they invest the ITU with the authority to formulate telegraph and telephone regulations which become binding legal obligations upon formal acceptance by member nations These agreements also establish mutual legal obligations among the parties several of which are directly relevant to information operations Perhaps the most significant of these obligations is in Article 35 which provides that all radio stations whatever their purpose roost be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Members or of recognized private operating agencies which carry on radio service and which operate in accordance with the provisions of the Radio Regulations Harmful interference is de ned in Annex 2 to the Convention as interference which endangers the rnctioaing of a radio navigation service or of other safety services or seriously degrades obstructs or repeatedly interrupts a radio communication service operating in accordance with the Radio Regulations One of the clearest violations of this provision would be the jamming or spoo ng of a radio navigation service Without speculating on all the possible pennutations of the application of this provision to the broad range of information operations suf ce it to say that this provision on its face would appear to restrict many such operations that involve the use of radio broadcasting On the other hand Article 38 of the ITC provides a speci c exemption for military transmissions Members retain their entire freedom with regard to military radio installations of their army naval and air forces In July 1994 when the United States was considering broadcasting messages to the Haitian people from US military aircra in international airspace urging them not to set out to sea in hazardous vessels the Of ce of Legal Counsel in the Department of Justice relied on the military exemption in Article 38 as one of several bases for determining that the ITC does not prohibit such activity Article 38 goes on to say Nevertheless these installations must so far as possible observe the measures to be taken to prevent harmful interference and the provisions of the Administrative Regulations concerning the types of emission and the frequencies to be used according to the nature of the service performed by such installations While this provision indicates that military installations do not have carte blanche to interfere with civilian communications the phrase so far as possible read together with the speci c exemption for military radio installations provides considerable room to maneuver for information operations conducted by military forces The NC also provides speci c authority for its member nations to interfere with international telecommunications in certain circumstances Article 19 allows members to stop the transmission ofaoy private telegram which may appear dangerous to the security of the State or contrary to their laws to public order or to decency provided that they immediately notify the office oforigia of the stoppage of any such telegram or part thereof except when such noti cation may appear dangerous to the security of the State Article 19 also permits members to cut all any other private telecommunications which may appear dangerous to the security ofthe State or contrary to its laws to public order or to decency - Article 20 reserves the right of members to suspend the international telecommunication service for an inde nite time either generally or only for certain relations and or certain kinds of correspondence outgoing incoming or in transit provided that it immediately notifies such action to each of the other Members through the medium of the Secretary Geueral Finally it seems clear that the l'l C s provisions apply primarily in peacetime The treaty does not speci cally state how if at all - it will apply durirr an armed con ict Nevertheless there is ample precedent in which nations have demonstrated conclusively that they regard the provisions ofintematioual communications conventions as being suspeoded between belligereots engaged in armed con icts Prior to the First World War for example all the major European nations were parties to the 1884 Convention for Protection of Submarine Cables The rst day of the war the British Navy pulled up and cut the ve major submarine cables serving Germany Throughout all the wars of this century communications facilities of all sorts have been regarded as priority military targets Since some of the parties to the ITC and other multilateral communications conventions are likely to be neutrals is armed con icts between other nations the result may become somewhat complicated Most obligations will be considered to be suSpeoded among the belligercots but they will remain in effect between each belligerent and the neutral parties to the agreement as well as among the neutral parties Note The issue of the extent to which a neutral nation or an international commruricatioos consortium may continue to provide communications services to a belligerent is discussed in the law of war section of this paper The United States has negotiated bilateral communications only selectively primarily because the ITC and the ITU provide a framework for handling most international communications issues As one might expect the need for bilateral communications agreements has arisen for the United States primarily with Canada and Mexico because of the potential for interference in broadcast communications across our common borders A number of bilateral communications agreements have also been negotiated between the United States and nations where US military forces are stationed There is a potential for such bilateral agreements to 31 erwxaywrm either restrict or facilitate information operations by US military forces I'he agreements concerned should be consulted when such an issue arises B Domestic Communications Law The ITC and its predecessors obligate each Member nation to suppress acts by individuals or groups within its territory that interfere with the communications of other members In partial satisfaction of this obligation in 1934 Congress enacted 47 USC 502 which provides Any person who m ll illy and knowingly violates any role regulation restriction or condition made or imposed by any international radio or wire communications treaty or convention or regulations annexed thereto to which the United States is or may hereafter become a party shall in addition to any other penalties provided by law be punished upon conviction thereof by a ne of not more than $500 for each and every day during which such offense occurs In October 1993 when the United States was considering broadcasting radio messages to the people of Haiti supporting the return of democracy in that nation the Of ce of Legal Counsel of the Department of Justice concluded in a written opinion that 47 USC 502 would not apply to the actions of US military members acting on behalf ofthe President pursuant to the President s foreign a hirs and Cormander-iu Chief authority C Assessment International communications law contains no direct and speci c prohibition against the conduct of information operations by military forces even in peacetime The established practice ofnatioos provides persuasive evidence that telecommunications treaties are regarded as suspended among belligerents during international armed con icts Domestic communications laws do not prohibit properly authorized military information operations Accordingly neither international nor domestic communications law appears to present a signi cant barrier to information operations by U 8 military forces 32 VI IMPLICATIONS OF OTHER The State Department s most recent published list of international agreements to which the United States is a party TREATIES IN FORCE January I 1993 is 495 pages long The United States is a party to literally thousands of multilateral and bilateral international agreements From their about numbers one would think it inescapable that lurking somewhere in those agreements are provisions that will a 'ect particular information operations activities This section attempts only to highlight certain kinds of typical agreements that are likely to contain obligations relevant to the conduct of information operations A Mutual Legal Assistance Agreements Mutual legal assistance agreements sometimes called judicial assistance agreements obligate each party to gather and provide evidence located in its territory concerning litigation or criminal prosecutions that occur within the jurisdiction of another party requesting such assistance The United States is a party to several dozen mutual legal assistance agreements Some of these agreements apply only to the management of particular litigation or to certain types of offenses such as drug trafficking and money laundering Only a few mutual legal assistance agreements apply broadly to all law enforcement investigations and prosecutions Such an agreement may supply the only domestic legal authority for the assisting party to investigate offenses that did not occur within its jurisdiction and it also establishes procedures that expedite the requested assistance To be effective in helping to suppress computer crimes and other high tech o enses mutual legal assistance agreements must either expressly cover such offenses or they must apply broadly to all crimes B Extradition Extradition agreements obligate the parties in certain circumstances to deliver persons accused of crime to the other party for criminal prosecution The United States is a party to more than a hundred bilateral extradition treaties as well as to a 1933 Convention on Extradition to which thirteen nations in the Americas are parties If no extradition treaty is in effect a national government often will have neither an international obligation nor the domestic authority to deliver custody ofau individual to another nation for the purpose ofprosecutiort It is important that the list of offenses covered by such agreements include computer intrusions and other high-tech clinics In addition the effectiveness of extradition treaties is often ustrated by provisions providing that the requested nation will not extradite its own citizens or that it will not extradite persons who commit crimes for political reasons NOTE The Department oflustice has undertaken a major initiative with the countries the other seven being the United Kingdom Germany Japan Italy Canada France and Russia to modernize the domestic criminal law of each nation to adequately provide for the investigation and prosecution of computer intrusions and other high tech crimes and to put into place any needed improvements to international agreements providing for mutual legal assistance and extradition In December 1997 the Attorney General hosted a meeting of the G8 Justice and interior Ministers to discuss these issues and a number of follow- up working group meetings have been held since that time The United States has also participated in a project undertaken by the Council of Europe to draft an international convention on cybencrime Recently the United States undertook similar efforts in the Organization ofArnericao States and at the United Nations C The United Nations Convention on the Law of the Sea UNCLOS Many provisions of this treaty which is before the Senate for advice and consent are considered to express customary international law Some of the provisions discussed here are among them and are therefore considered to be binding on all nations whether or not they are parties to the Convention Others constitute new obligations One principle widely accepted as existing customary international law is the obligation in Article 19 for a vessel exercising the right of innocent passage through a nation s territorial sea not to engage in activities prejttdicial to the peace good order or security of the coastal State The prejudicial activities listed in Article 19 include 1 any threat or use of force against the sovereignty territorial integrity or political independence of the coastal State or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations - any act aimed at collecting information to the prejudice of the defence or security of the coastal State - any act of propaganda aimed at affecting the defence or security of the coastal State - any not aimed at interfering with any systems of communication or any other facilities or installations of the coastal State Once UNCLOS is in general effect these restrictions on activities aboard vessels in a coastal state s territorial sea will be of relatively minor importance because UNCLOS limits the width of the territorial sea a nation can claim to twelve nautical miles At present a number of nations claim territorial seas as wide as 200 miles The limitation on the width of the territorial sea together with other important guarantees UNCLOS establishes for the free operation of military aircraft and vessels have led fled to strongly support rati cation of UNCLOS Article 109 of UNCLOS provides that all States shall co-operate in the suppression of unauthorized broadcasting from the high seas and de nes unauthorized broadcasting for the potposes of the Convention as the transmission of sound radio or television broadcasts lion a ship or installation on the high seas intended for reception by the general public contrary to ioteinational regulations The international regulations referred to consist primarily of the provisions of the Nairobi Convention and the lTU s Radio Regulations discussed in section of this paper This provision which is generally regarded as establishin new law was designed to deal with pirate radio broadcasting from vessels and platforms on the high seas which became a signi cant problem for a number of countries in the 19605 These broadcasts were primarily commercial in nature by operating from the high seas they escaped the coastal state s regulation and taxation Article 109 confers jurisdiction to prosecute persons engaged in pirate radio broadcasts upon the state whose ag the ship ies the state where a broadcasting installation is registered the state of which the broadcasting person is a citizen any state where the transmissions can be received and any state where authorized radio communication is suffering interference Article 109 also provides that any state having jurisdiction to prosecute may arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus Article 113 reqnires parties to adopt domestic criminal legislation punishing willful or culpany negligent damage to submarine cables belonging to other parties by ships or persons under their jurisdiction These UNCLOS provisions have the potential to affect only a narrow category of information operations but they will have to be considered when decisions are made concerning those operations to which they do apply at least in peacetime UNCLOS does not expressly address how it will apply during an international armed con ict In accordance with the general principles discussed in the introduction to this paper provisions determined to be incompatible with a state of armed con ict will be regarded as suspended among the belligerents The established practice of nations leaves no doubt that Article 19 s regime governing innocent passage through the territorial sea will be suspended between belligerents The same can be said with a high degree of con dence concerning Article 1 13 s protections for submarine cables Article 109 s provisions for the suppression ofnnauthorized radio broadcasting from the high seas are relatively new with little established practice Analytically there would seem to be little reason to suspend its application to commercial broadcasters during an armed con ict but it would almost certainly not apply to broadcasts 'om the high seas conducted by a belligerent for military diplomatic purposes D Treaties on Civil Aviation The United States is a patty to a number of treaties conceinin civil aviation the most signi cant of which is the 1944 Coronation on International Civil Aviation This treaty which has more than 180 patties is often referred to as the Chicago Convention It establishes the International Civil Aviation Crganization ICAO and provides the basic legal homework for international civil aviation The Convention does not directly apply to state aircraft except for the obligation stated in Article The contracting States undertake when issuing regulations for their state aircraft that they will have due regard for the safety of navigation of civil aircraft This concern for safe navigation by civil aircraft is also re ected in Article 28 which provides that each party will provide navigation and communications services as agreed upon through ICAO procedures and in Article 37 which provides that the parties will comply with international standards and recommended practices and procedures on a variety of subjects including communications systems and air navigation aids Over the years the Council has developed and adopted 18 technical Annexes to the Chicago Convention Annex 10 Aeronautical Telecommunications contains agreed provisions on aeronautical communications navigation and surveillance While military aircraft are not directly bound by these provisions their obligation of due regard for the safety of civil aircraft generally includes an obligation not to interfere with these systems The United States is currently engaged in negotiations in ICAO concemin the role to be played by the Global Positioning System in future navigation systems for international civil aviation In particular an accommodation must be reached between interest in ensuring that navigation services essential to the safety of international civil aviation are not interrupted during an armed con ict and the military imperative for the United States to be able to deny the use to a military adversary Similar issues are certain to arise in the future in which information operations activities may create implications for the safety of international civil avratton 35 The Chicago Convention is rare among multilateral treaties in that it has a speci c provision concerning its application during armed con ict Article 89 provides in case ofwar the provisions of this Convention shall not a ect the freedom of action of any of the contracting States affected Whether as belligerents or as neutrals The same principle shall apply in the case of any contracting State which declares a state ofnetional emergency and noti es the fact to the Council Upon re ection however this provision is unlikely be applied as broadly as its language indicates It seems clear that many provisions of the Convention are inconsistent with a state of armed con ict The most obvious is the principle that aircraft not engaged in scheduled airline service have the right to free passage into or through the airspace of other parties Other provisions do not appear to be incompatible with a state of attired con ict among some ofthe parties For example the existence of a state of armed con ict among certain parties should not be regarded as suspending the belligerents obligation to carry out their combatant activities with due regard for the safety of civil aviation Accordingly Article 89 does not provide much help in deciding what provisions ofthe Convention will remain applicable during an armed con ict and resort will still be required to the general principle that only those obligations that are incompatible with a state of attired con ict will be suspended and only among the belligerents E Treaties on Diplomatic Relations The United States is a party to the 1961 Vienna Convention on Diplomatic Relations 3 vwidely adhered to treaty establishing obligations among its parties concerning the treatment of diplomatic personnel and premises Anion the protections afforded a party s diplomatic mission in the territory of another state are the right to inviolability of the premises of the mission Article archives and documents Article 24 the private residences papers correspondence and property of diplomatic agents Article 30 and diplomatic communications Article 27 The treaty further provides that the mission may communicate with its government and other missions and consulates of its government by all appropriate means including diplomatic couriers and messages in code or cipher However the mission may install and use a wireless transmitter only with the consent of the receivitt State Conversely the treaty imposes certain duties on diplomatic missions Article 41 provides that personnel of the mission most reSpect the laws and regulations of the receiving state that they most not interfere in the receiving state s internal affairs and that the premises of the mission most not be used in any manner incompatible with the mctions of the mission as laid down in the present Convention or by other rules ofgeaeral international law or by any special agreements in force between the sending and the receiving State Article 45 provides that the duties of the receiving state continue in force even in the case of armed con ict between the parties or if diplomatic relations are broken off between them even though the sta ' of the mission is recalled Planning for any information operations activity that involves diplomatic premises persons archives documents or communications either as an instrument or as a target of the operation must take into account these international legal obligations F Treaties of Friendship Commerce and Navigation The United States is a party to a large number of bilateral agreements with other nations providing reciprocal arrangements for expedited tourism trade and transportation between the parties These agreements have various titles and their provisions differ somewhat Most such agreements do not contain specific provisions on telecommunications and they constitute perhaps the archetype of agreements that are likely to be regarded as suspended during an armed con ict because their provisions expediting lice travel nod trade between the parties are incompatible with hostilities between as them Nevertheless planning for information operations especially in peacetime should include a review of all significant international agreements between the United States arid any other nation that may be affected G Status of Forces and Statiooing Agreements When the military forces of one nation are present lo the territory of another nation with its consent it is customary for the nations involved to execute writteo agreements establishing the rights and obligations of the parties concerning the visiting forces Statioohtg agreements establish the consent of the host nation to the presence of foreign troops set agreed limits on their numbers equipment and activities and identify facilities for their use These topics may also be dealt with in a defense cooperation agreement or some other agreement providing for the overall defense relationship between the parties It is also common for the parties to execute a status of forces agreement SOFA that addresses the allocation ofvarioos kinds of legal jurisdiction over the visiting forces The best known of these agreements is the 1951 Agreement Between the Parties to the North Atlantic Treaty Regarding the Status ofllzeir Forces NATO SOFA As of the cod of 1998 the United States was a party to 103 SOFAs most of which follow the general pattern of the NATO SOFA SOFAs are necessary because of an overlap of legal jurisdiction exercised by the sendio and receiving states The receiving state has jurisdiction over persons and activities in its territory while the sending state has both the right and the duty to exercise control over its armed forces which is clearly a core sovereign function Since the full concurrent exercise of the comic jurisdiction sending and receiving states is impractical status of forces agreements allocate criminal and civil court jurisdiction between the sending and receiving states and also exempt the visiting force and its members from certain taxes customs fees and procedures immigration formalities and most host nation licensing and inspection requirements Typically an administrative claims procedure is established for personal injuries and property damage caused by the visiting force Another common provision requires that the visiting force and its members respect the host nation s laws This requirement will be discussed in detail in the next section of this paper The NATO SOFA is implemented in roost NATO countries by separate more detailed bilateral supplementary agreements and by numerous other bilateral agreements on speci c subjects including communications These agreements contain provisions that must be taken into account if U S military forces intend to engage in information operations activities while present in the territory of the receiving state For example many such agreements require that the United States notify the host nation of any signi cant change in the capabilities or uses of installations made available for the use of U S military forces If U S authorities intend to conduct information operations activities from such installations a determination must be made as to whether the relevant agreements require notifyin the host nation and perhaps even requesting its consent - Stationing agreements often provide that the visiting U S forces may install and use various communications equipment but they often provide as well that such equipment must not interfere with host nation communications systems and that it must be used in accordance with 37 host nation laws and regulations Ifthis equipment is to be used for information operations aetiyities it must be determined whether the contemplated activities are consistent with these obligations Many stationing agreements authorize or even obligate the visititt force to use the receiving state s military and civilian communications systems Commonly there are obligations that any US use of host nation communications systems must not cause interference and that such use must be in accordance with host nation laws and regulations The potential for information operations to cause interference with the host nation s communications system and the possible application of host cation laws and regulations must be carefully considered along with the fact that the conduct of o ensive information operations through host nation communications systems may subject them to possible countermeasures and acts of self-defense in peacetime and may make them legitimate military targets during an armed con ict Finally if a host nation discovers that its territory and facilities have been used without its knowledge as a base for US information operations of a nature that may tend to involve it against its will in a con ict or dispute US diplomatic and military relationships with the host nation are likely to suffer The host nation could well take the View that in principle there is little di et ence between using an ally s territory to launch air Strikes and using it to launch computer oehvork attacks or other information operations activities As a practical matter computer network attacks are much more dif cult to identify trace and attribute However it will not always be impossible to do so particularly when information on such attacks is available from intelligence sources Accordingly decisions whether to conduct information operations from the territory of an ally and especially whether to do so without the host nation s knowledge and consent must he made at senior policy levels H Soviet Dangerous Military Activities Agreement During the Cold War there were a number of incidents in which US and Soviet forces followed each other closely in international waters and airspace especially during military exercises and sometimes physically interfered with each other s operations Lest these incidents inadvertently escalate into an armed confrontation on June I l 1988 the Chairman of the Joint Chiefs of Staff and the Soviet Chief of General Sta ' issued a joint statement in which they declared their intent to avoid dangerous military activities in the vicinity of each other and on July ll 1988 the United States and the Soviet Union signed the Agreement on the Prevention of Dangerous MilitaryActiviries In Section 1 d of Article II of that agreement the parties agreed that when operating in proximity to personnel and equipment of the armed forces of the other party during peacetime they will not interfere with command and control networks in a manner which could cause harm to personnel or damage to equipment of the armed forces of the other Party Article 1 Section 9 of the agreement de nes interference with command and control networks as actions that hamper interrupt or limit the operation of the signals and information transmission means and systems providing for the control of personnel and equipment of the armed forces of a Party The United States has recognized the Russian Federation as a successor state to the Soviet Union for purposes of this agreement The question of succession under this agreement by other nations that were part of the Soviet Union has not been authoritatively addressed In the rather narrow circumstances in which this agreement applies it remains a binding international legal obligation Vii FOREIGN DOMESTIC LAWS A Introduction Laws enacted by other nations may have important implications for information operations activities conducted by U S military forces US criminal statutes addressing competenrelated offenses space activities communications and the protection of classi ed information all raise important issues for information operations Similarly foreign laws affecting US information operations activities will most likely also consist of criminal statutes The sophistication of foreign domestic law on highvtech activities varies enormously and it will continue to do so for the foreseeable future The more technologically advanced countries tend to be more aware of the dangers created by computer hackers and other high tech criminals so they typically take the lead in putting legislation into place to criminalize such behavior It is no accident that the Justice Department s international program to promote appropriate changes to mutual legal assistance treaties and other nations domestic laws which was discussed in Section VI of this paper concentrated rst on the GS countries and the Council of Europe There are other important variables at work besides technological advancement however including each nation s public opinion and policy positions concerning high tech offenses especially computer hacking There are persons in every country including the United States who regard hackers as essentially harmless pranksters There is a well established minority view that the Internet and all the computer systems connected to it should be rm game and that defeating attempts to gain unrestricted access to these resources or imposing regulations on personal conduct on the Internet are repressive violations of the hackers civil liberties The argument is even advanced that hackers provide valuable assistance to the operators of the computer systems they attack by revealing vulnerabilities that otherwise might have been exploited by sinister persons with malicious motives On the international scene there is the additional factor that many individuals love to see one of their fellow citizens succeed in pulling the tail of richer and more powerful nations especially the United States As a result the state of domestic laws dealing with high-tech misconduct varies enormously from country to country This has important implications for US information operations for two basic reasons I The state of a nation s domestic criminal law directly impacts the assistance that the nation s public of cials can provide in suppressing certain behavior by persons operating in its territory and 2 The state of a nation s domestic criminal law may have a signi cant effect on U S information operations conducted in the nation s territory or involving communications routed through the nation s communications systems B Cooperation in Investigations and Prosecutions It should be readily apparent that law enforcement of cials cannot prosecute an individual for conduct that is not de ned as a crime in the applicable criminal law It may be less obvious but equally important that in most constitutional governments law enforcement officials may not use their authority to conduct criminal investigations unless the alleged conduct constitutes a crime If a hacker in Country uses the lnternet to gain access to a DOD computer in the Pentagon copies sensitive data deletes or corrupts data and installs malicious logic the law enforcement officials of Country may be able to assist in investigating that conduct and may be able to extradite the o ender to the United 39 States only ifone or more of the hacker s actions constitute a crime under that nation s law Even where such legislation exists the legal system may still not be able to provide either extradition or meaningful criminal punishment as occurred in the case of a young Israeli hacker given a suspended sentence by an Israeli court after he participated in a series of unlawful intrusions into 1301 computer systems in early 1998 The domestic laws of some nations may also permit the use ofdcvices specifically designed to frustrate attempts to trace Internet communications to their source Since geography is essentially irrelevant to communications on the Internet devices such as anonymous remailers which strip all information about the originator of a message make it possible for a hacker located anywhere - even in the United States or other country to avoid identi cation by routing his or her message through the anonymous remailer In this way weaknesses in the domestic law of one state may provide impunity to hackers everywhere the weakest link therefore threatens law enforcement even in countries with robust and sophisticated laws Accordingly the imperative to bring domestic laws in every nation up to a reasonable standard should be readily apparent C E ect ofForeinn Domestic Law on Actions of US Information Operators If a CINC or a JTF commander decides to order execution ofa certain information operations activity by forces under his or her command who are deployed in a foreign country the commander may have to consider whether or not such activity is prohibited under local law The answer may be important at two di erent levelsiof analysis 1 The individuals who issue or execute such an order might be subject to prosecution in a host nation criminal court and 2 The commander might feel obligated on a policy basis to relish from issuing such an order lfa US military member issued an order or performed an act in the course of his or her of cial duties overseas that was a crime under host nation law the member could very well be subject to prosecution in a host nation criminal court Under many SOFAs an act done in the course of a military member s of cial duties falls within the primary right to exercise jurisdiction of the sending state but that rule applies only when the conduct constitutes an o ense under the law of both nations or only under US law Where the conduct alleged constitutes an o ensc only under the law of the host nation the host nation has exclusive jurisdiction to prosecute The United States has consistently taken the position that it would be intolerable for a US military member to be criminally prosecuted for performing an act that is legal under applicable US law such as the Uniform Code of Military Justice UCMJ and which he or she was instructed to perform in the execution of an of cial duty A similar issue arose recently in connection with the adoption by several NATO member nations of domestic laws making it a crime to possess anti-personnel land mines APLS There is no similar crime under the UCMJ In several cases the nations concerned have agreed to permit the U S forces to retain their APL stockpiles in the host nation s territory for at least some period of time In these cases either speci c exemptions from the host nation law or agreed screening procedures for prosecutions have had to be devised to prevent prosecutions of 11 8 military members for perforurin their of cial duties In practice such prosecutions are most unlikely because if U S military authorities become aware that performance of certain information operations within the territory ofa speci c host natiort or that produce harmful effects within its territory will subject military 40 personnel to possible hom nation criminal prosecution those US military authorities are most unlikely to order that such operations be conducted The result will he that US forces are unable to conduct certain activities they would otherwise conduct or perhaps they will have to use forces elsewhere to conduct the operation The issue thus becomes not so much one of the prospect of criminal prosecution of individual servicemenihers but rather of a limitation on the conduct of US information operations This consideration may he not only a policy issue it may involve binding legal obligations under a status of forces or sinular agreement For example Article ll of the NATO SQFA provides it is the duty of a force and its civilian component and the members thereof as well as their dependents to respect the law of the receiving State Similar language appears in most other SOFAs to which the United States is a party Considerable practice has accumulated concerning the application of this obligation to hcspect the law of the receiving state It has often been argued that the dra ers could have said the visiting force must comply with host nation law but instead chose the less de nite term respect The product of almost fifty years of US practice in implementing SOFAs worldwide appears to be that US visiting forces will generally observe the content of host nation law but are exempt from the law s procedural requirements such as licensing inspection and reporting If US visiting forces seek to avoid the application of the substance of a foreign law they generally request the host nation to grant them a Specific exemption or at least to reach an understanding that a particular host nation law will not be enforced against the visiting forces If a contemplated information operation activity appears to con ict with host nation law the commander concerned might choose to consult with host nation of cials in an effort to resolve the issue lftirne or other circumstances do not permit such consultations the commander should consider whether the activities in question should he conducted by forces outside the territory of the host nation concerned and in a manner that would not make use of or a ect that nation s communications systems US military and diplomatic authorities should be able to manage host nation legal issues if we identify them early on and care ully consider the available courses of action 41 IWLICATIONS OF ESPIONAGE A brief review of the treatment of espionage under international law may be instructive in predicting how the international community will react to information operations especially in those mission areas in which the some technical capabilities may be used for both espionage and information operations and also in other areas where reasonably persuasive analogies present themselves A Espionage under International Law For our present purposes espionage maybe defined as the covert collection of intelligence about other nations Espionage is a much narrower topic than intelligence much of which is collected via open source information voluntary exchanges of information among nations and technical means such as satellite imagery and signals intelligence that are generally accepted as legal by the international community Roughly stated covert methods of collecting intelligence are in most cases designed to go undetected by their target and if detected they are designed to be noattn'butable to the sponsoring state Nevertheless discovery attribution and public disclosure occur fairly often B Espionage during Armed Con ict The treatment of spies during armed conflict is well established in the law of war A spy is de ned in the law of war as any person who when acting clandestiner or under false pretenses obtains or endeavors to obtain information in the area controlled by a belligerent with the intention of communicating it to a hostile party A spy may be a military member or a civilian and his or her citizenship is irrelevant Military personnel wearing their own uniforms are not considered to be spies even if they engage in collecting intelligence behind enemy lines Only a person gathering intelligence while relying on protected civilian status or while wearing an enemy uniform is considered to be a spy under the law of war Accordingly information operations during an armed con ict will not raise any issue of spying under the law of war unless they involve the presence of individuals inside enemy controlled territory who I are engaged in collecting information with the intent of communicating it to a hostile party and 2 are wearing civilian clothing or enemy uniforms It seems highly unlikely that the notions of electronic presence or Vhtnal presence will ever nd their way into the law of war concept of spying for two reasons I If an individual is not physically behind enemy lines he or she is not subject to capture during the mission and 2 There will be no issue of acting under false pretenses by abusing protected civilian status or by wearing the enemy s uniform This will exclude most information operations activities from being considered espionage in wartime Nevertheless behind-thohnes missions to collect information or to install devices that enable the collection of information may well raise wartime spying issues If caught in enemy territory a spy can be punished after an appropriate trial under the domestic law of the captor The punishment can include the death penalty The nation on whose behalf the spy was acting however will not be considered to have violated any international legal obligation In addition if individuals who may have engaged in espionage but successfully complete their missions that is they have returned to friendly lines and subsequently are captured while not engaged in acts of spying they may not be punished for their previous acts of espionage 42 amwwm mm C Espionage in Peacetime Unlike the relatively well developed treatment of espionage under the law of war there is very little authority on the treatment ofespiooage under international law in peacetime There have of course been many domestic criminal trials of peacetime spies in many countries including the United States By contrast there has been almost no activity concerning peacetime espionage within the international legal system except for public complaints and the expulsion of implicated diplomats This may be because the primary harm done to the victim nation consists of the fact that certain secret information has been compromised which is a more abstract and indirect type of injury than dead or injured citizens property damage or invasions of territory The lack of strong international legal sanctions for peacetime espionage may also constitute an implicit application of the international law doctrine called to rjtxoque roughly a nation has no standing to complain about a practice in which it itself engages Whatever the reasons the international legal system generally imposes no sanctions upon nations for acts of espionage except for the political costs of public denunciation which don t seem very onerous The consequences for individuals caught spying however can be very serious Such individuals can be tried for whatever crimes their conduct may constitute under the victim nation s domestic law whether charged as espionage as unlawful entry into its territory or as a common crime such as burglary murder theft bribery obtaining unauthorized access to state secrets or unauthorized computer intrusions This fact accounts to some extent for the widespread practice of assigning intelligence operatives to embassy sta positious in which they enjoy diplomatic immunity from prosecution Hie only remedy for an offended host nation is to declare such persons to be persona non grata which obligates the sending nation to remove them from the country The treatment of eSpiouage under international law may help us make an educated guess as to how the international community will react to information operations activities As discussed in Section of this paper on the use of force international reaction is likely to depend on the practical consequences of the activity if lives are lost and property is destroyed as a direct consequence the activity may very well be treated as a use of force If the activity results only in a breach of the perceived reliability of an information system it seems unlikely that the world community will be much exercised In short information operations activities are likely to be regarded much as is espionage - not a major issue unless signi cant practical consequences can be demonstrated That leaves the issue of the possible criminal liability of an information operator who may later came into the custody of a nation that has been the victim of an operation in which he or she has engaged As with a spy there is no evident theoretical reason why such an individual could not be prosecuted for violation of the victim nation s criminal laws As a practical matter however the problems of detection and attribution of information operations activities at the national level are daunting the likelihood of being able to prove in court that an individual engaged in a certain information operations activity -- while not impossible - seems small Finally it deserves mention that there is an established division of labor within the US government between the intelligence community and the uniformed military forces concerning 43 covert actien speaking the intelligence cmmnunity conducts covert action eperations in peacetime that do not consist 0f traditional military activities It remains ta be seen how infonnaticti operations activities will fall within this division of labor especially whee they are asscciated with military operations other than was D Assessment Informatics operatiens activities are unlikely to fall within the de nition of Spying in wartime although a limited category of activities ielated te information Operations may 50 qualifyi Informatiett cperatiens activities sic mere likely to fall within the category of peacetime espienage Perhaps more importantly the reaction world commxmity to information operations that do act generate widespread dramatic censequences is likely to be very similar to its reaction to espienage which has traditionally been tepid 44 lX INTERNATIONAL EFFORTS TO WARFA As soon as the concept of information warfare began to receive broad press coverage discussion began of negotiating a treaty that would prohibit or restrict it A draft treaty test that circulated on the Internet in 1995 said simply The Parties to this Convention agree not to engage in information warfare against each other The rst public govenunental initiative was a resolution tabled by Russia in the First Committee in October 1998 that apparently re ected a serious e ort to get the UN to focus on the subject The Russian resolution included a call for states to report their views regarding the advisability of elaborating international legal regimes to ban the development production and use of particularly dangerous information weapons The United States has taken the position that it is premature at this point to discuss negotiating an international agreement on information warfare and that the energies of the international community would be better spent on topics of immediate concern such as helping each other to secure information systems against criminals and terrorists So far there has been little support expressed for the Russian initiative There are both similarities and differences between the concept of a treaty to ban or restrict information warfare and similar o orts to prohibit Xveaponization of space One similarity is the political reality that nations lacking a signi cant new military capability that they perceive will be dominated by a few wealthy and power rl states have a strong incentive to agree to ban or restrict that capability There may be an even greater incentive to prevent interference with information systems which all nations possess to some degree than with space systems in which only 39 nations are currently active and which are dominated by the United States Russia and the EurOpean Space Agency On the other hand the number of nations that have any reasonable expectation of developing their own space control systems anytime soon can be counted on the ngers of one hand while anyone with a desk-top computer and an Internet connection thereby has access both to hacker tools and to a wide variety ofimpottant information targets worldwide Accordingly as nations appraise where their long-tern national interests lie the calculus is quite di 'erent as between international legal restriction of the vaaponization of space and similar control of information warfare With space systems most states do not expect to be either an attacker or a defender in the near xture With information systems all states can reasonably expect to be both As with space control the United States has not yet addressed fundamental policy decisions about where its long-term interests lie in connection with the possible international legal restriction of information operations 0n the one hand there is an obvious military interest in being able to interfere with an adversary s information systems and in being able to protect one s own Used as an instrument of military power information operations capabilities have the signi cant advantage that they minimize both collateral damage and friendly losses of personnel and equipment Their use may avoid unwanted escalation of a dispute or conflict They are relatively cheap and require much less in the way of forward basing deployment and logistical support than do traditional weapons and their delivery platforms 0n the other hand as the nation that relies most heavily on advanced information systems the United States has the greatest vulnerability to attack This concern would seem to drive U S policymakers to consider the merits of international restrictions on information 45 aperaxiens Ifwe maid negatiaie an a eciiva imematianal baa 03 certain types 0f mfmma gn operatimg activities might signing such a treaty beg gems mu long-term national interests The subject 0f informazian operations is Gf amuse mach mare sample thaa hat cf space central aince there are many mare infarmaiian systems subjest 19 attack 50 many mare ways if masking them so many mare pomiltial players plus constant rapid changes in the relevaat systams and technologies As we have learned in our intemal US palicy deliberations there are great dif aulties in awn agreeing an dc n ions nfwhat ought be included in discussicns if in farmatima warfare and infarmatinu eperatims In these circumstancss it saems unlikely that mre will bs much enthusiasm anytime 3mm fer negatiating at international agreement that would signi cantly Y Stl iCt infermatian apemtions 46 X OBSERVATIONS There seems to be little likelihood that the international legal system will soon generate a coherent body of information operations law The most useful approach to the international legal issues raised by information operations activities will continue to be to break out the separate elements and circumstances of particular planned activities and then to make an informed judgment as to how existing international legal principles are likely to apply to them In some areas such as the law ofwar existing legal principles can he applied with considerable con dence In other areas such the application of use of'force principles to adopting an active defense it is much less clear where the international community will come out and the result will probably depend more on the perceived equities of the situations in which the issues rst arise in practice than on legal analysis The growth of international law in these areas will be greatly in uenced by what decision-makers say and do at those critical moments There seems to be no particularly good reason for the United States to support negotiations for new treaty obligations in most of the areas of international law that are directly relevant to information operations The principal exception is international criminal cooperation where current US efforts to improve mutual legal assistance and extradition agreements should continue to receive strong emphasis Another idea that might prove fruitful is to negotiate a treaty to suppress information terrorism but there seems to be little concept at present how such an agreement would operate or how it would reliably contribute value to information assurance and critical infrastructure protection There are no show stoppers in international law for information operations as now contemplated in the Department of Defense There are however many areas where legal uncertainties create signi cant risks most of which can be considerably reduced by prudent planning Since so many of these potential issues are relatively novel and since the actions taken and public positions announced by nations will strongly in uence the development of international law in this area the involvement ofhigh-level policy of cials in planning and executing information operations is much more important at present than is the case with more traditional military activities 47 XI NOTES FOR FURTHER RESEARCH I INTRODUCTION There are many textbooks and caseboeks that provide general surveys of internatieual law Some of the more recent of these are Ian Bremrlieg PRINCIPLES OF PUBLIC INTERNATIONAL LAW 4 5 ed 1990 Barry E Qatar 9 Phillip R Trimble INTERNATIONAL LAW 1991 Stefhen Dycus Arthur L Berney William C Banks NATIONAL SECURITY LAW 2n ed 1997 Louis Henkiir Richard C Pugh Oscar Schachter Hans Smit INTERNATIONAL LAW CASES AND MATERIALS 3 d ed 1993 John Norton Meme - Frederiek S Tipsen Ruben F Turner NATIONAL SECURITY LAW I990 MalcoIm N Shaw INTERNATIONAL LAW 4 11 ed 1997 Useful coUections of materials on US practice concerning international legal issues include RESTATEMENT THIRD OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 1986 Haekworth DIGEST OF INTERNATIONAL LAW 7 Volumes 1940-1943 Whiteman DIGEST OF INTERNATIONAL LAW 15 Volumes 1963 1973 Contemporary Practice ofthe Uni ed ales Referring to Infemmional Law a regular feature in THE AMERICAN JOURNAL OF INTERNATIONAL and INTERNATIONAL LEGAL both 0f which are publicatiens of the American Society of International Law Web site at The United Nations Charter has been widely reprinted It can raise be found at 59 Star 1031 TS 993 3 Bevans 1153 The quotation from Chief Justice Holmes appears in THE COMMON LAW 1881 48 Discussions ofthe effect efwar en treaty obligations can be fennel in the fellewing RESTATEMENT THIRD OF FOREIGN RELATIONS LAW OF THE UNITED STATES Vol I 218-222 1986 Wltiteman DIGEST OF INTERNATIONAL LAW Vol 14 490-610 1970 Lester B Or eld Edward D Re CASES AND MATERLALS ON INTERNATIONAL LAW 53-73 1955 Ian Brown e PRINCIPLES OF PUBLIC INTERNATIONAL LAW 616 617 I990 There have been relatively few books and anicles published to date addressittg international legal issues in information operations Among these are ME Bowman 3 International Law Readyfer the Information Age 19 FORDHAM L J 1935 1996 Lawrence T Greenberg Seymeur E Geodman Kevin J Soc Hen OLD LAW FOR A NEW THE APPLICABILITY OF INTERNATIONAL LAW TO INFORMATION WARFARE 1997 Published as a mottograph by the Institute for International Studies Stanford University and in revised form in 1998 by the Institute for National Strategic Studies National Defense University the latter under the title INFORMATION WARFARE AND INTERNATIONAL LAW Sean P Kanuck Warfare New Challenges for Public International Law HARV L J 272 Winter 1996 Michael N Schmitt Computer NenvorkAtiac c and the Use of Force in International Law Ihoughts an aNormative Framework 37 COLUM J L 885 1999 Reger D Scott Legal Aspects of Information Welfare Military Dismption of eiecommunications 45 NAVAL L REV 57 1998 Gary Sharp Sn CYBERSPACE AND THE USE OF FORCE I999 49 II THE LAW OF WAR The views of the US military services on law ofwar matters are summarized in military publications such as the US Army s Field Manual 27-10 LAW OF LAND WARFARE 1956 Air Force Pamphlet 116 3 1 INTERNATIONAL LAW THE CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS 1976 and Naval Warfare Publicatioa 1- MM THE HANDBOOK ON THE LAW OF NAVAL OPERATIONS 1995 In addition Bumrs Carnahao has compiled a comprehensive research report on US practice relating to customary law of war principles for use by the International Committee of the Red Cross io its ongoing study of worldwide practice relating to the customary law of war Unfortunately neither Mr Camahan s study nor the ICRC study is yet available in published form Finally the Del Law ofWar Working Group chartered by Del Directive 5100 77 The Law of War Program December 1998 has for several years been composing a DOD LAW OF WAR MANUAL When it is published it will constitute the most current and compreheasive statement of the Department s views on law of war matters There are also a large number of books and articles commenting on law of war issues which are far too numerous to list here Information on law ofwar issues that arose during the 199 Persian Gulf conflict can be found in Appendix 0 The Role of the Law ofWar in the DOD report to the Congress on the conduct of the Persian GulfWar which is reprinted in 31 INTERNATIONAL LEGAL MATERIALS 1992 The 1907 Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land is published at 36 Stat 2310 TS 540 actions during 1999 bombing campaign in Kosovo are described in Steven Pearlstein Serb Gees Notice It s Canceled WASHINGTON POST May 23 I999 The signi cance of the peaceful purpose principle to the new INMARSAT is discussed in a April 15 1999 letter from the COMSAT Corporation s Of ce of Legal Counsel to Mobile Datacom Corporation A 50 ill USE OF FORCE Indicators that the United States considers the 1970 Declaration on Friendly Relations to constitute an authoritative statement of intematioreal law include Statement by Richard H Ginger U S Alternate Representative to the UN General Assembly DEPT OF STATE BULLETIN 623 November 1970 and Statement by Robert Rosensteck U S Representative to the Sixth Committee Legal in Boyd DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1977 The statement by the US delegation to the effect that the I974 De nition onggression Resolution does not constitute an anthotitative statement of international law is reported at DEPT OF STATE BULLETIN 155 February 1975 The 1994 JCS Standing Rules of Engagement for US Forces are published as Chairman of the Joint Chiefs of Staff Instruction 3121 01 Some poxtions of this publication are classi ed but its discussion of the use of force in sel defense against hostile intent is unclassi ed At this waiting in November 1999 a revised version of the SROE was nearing publication No change is expected in the principle cited here The Caroline incident is reported in many texts one of the most detailed of which is 2 Moore A 0161331 on INTERNATIONAL LAW 409-414 1906 For an authoritative U S statement of the legal basis for the l986 bombing of Libya see President s Address to the Nation April 14 1986 reptinted in Exercises Right of Self- Defense against Libyan Terrorism DEPT OF STATE BULLETIN 1 June 1986 A collection of authoritative US statements of the legal basis for the August 1998 cruise missile attacks on terrorist camps in Afghanistan and a chemical plant in Sudan as well as other relevant materials can be found at 93 AM 3 OF LAW 161470 1999 The Corfu Channel case is published at 1949 4 The Chormw Factory decision is published at 1928 P C I J set A No 17 The US French air tra c tribunal decision is published as Case Concerning A fr Seneca Agreement Between mace and the United States Arbitral Award of December 9 1978 UNRIAA 417 443-446 The International Court of Justice decision in Nicaragua v United States of America is published at 1986 14 A statement by the State Department s Legal Advisor concerning the legal basis for US attacks on North Vietnamese forces in Cambodia is published at 62 DEPT OF STATE BULLETIN 765 1970 5 Thuothy Guiden has published an exteasive article on US operations in Cambodia Defending Aizxerim '5 Cambodian Incursion ARIZ 3 INTI 5t COMP L 217 1994 IV SPACE LAW The treaties cited in this section are poblished as follows Outer Space Treaty 18 UST 2410 TIAS 6347 610 UNTS 205 Rescue and Return Agreement 19 UST 7570 TMS 6599 672 UNTS 119 Liability Convention 24 UST 2389 TIAS 7762 961 UNTS 187 Registration Convention 28 UST 695 TIAS 8480 1023 UNTS 15 Moon Agreement U N Doc 68 1979 Environmental Modi cation Convention 3 333 9614 108 UNTS 151 Limited Test Ban Treaty 14 UST 1313 1148 5433 480 UNTS I3 ABM Treaty 23 TLAS 7503 944 UNTS 13 V COMMUNICATIONS LAW At this writing in November 1999 the international Telecommunications Convention of 1982 has not yet been published in the UST series which is the State Department s official compilation of international agreements to which the United States is a party This agreement is probably most accessible in DOC No 99 6 The United States is also a party to the Constitution and Convention of the International Telecommunications Union of 1992 which replaces the 1982 agreement as between parties to the 1992 agreement The two memorandum opinions of the Justice Department s O ice of Legal Counsel concerning broadcasting into Haiti are entitled Applicability of 47 USC Section 502 to Certain Broadcast Activities October 15 1993 and Memorandum for the Deputy Attorney General July 8 1994 The 1884 Convention for Protection of Submarine Cables and associated documents are published at 24 Stat 989 25 Stat 1424 TS 380 i Bevans 89 112 114 The major bilateral and regional communications agreements to which the United States is a party are listed in FORCE Many others are unpublished 52 VI OTHER TREATIBS Citations to the agreements described in this section can generally be found in the current TREATIES EN FORCE Pursuant to Directive 5530 3 international Agreements June 1987 a D01 repository and index of unpublished international agreements relating to military operations and installations is maintained in the Office of the Deputy General Counsel International Affairs VII FOREIGN DOMESTIC LAWS None IMPLICATIONS OF ESPIONAGE LAW None IX INTERNATIONAL EFFORTS TO RESTRICT The effort by Russia in the fall of 1998 to get the United Nations to take a rm stand on restricting information warfare produced only a resolution passed by the General Assembly on 4 January 1999 entitled Developments in the eld of information and telecommunications in the context of international security which calls upon Member States to promote at multilateral levels the consideration of existing and potential threats in the eld of information security invites all Member States to inform the Secretary General of their views and assessments on information security issues requests the Secretary-General to submit a report to the General Assembly at its next session and decides to include information security in the provisional agenda for its next session UN Doc 1999 In August 1999 the Secretary General submitted his report to the General Assembly it contained the statements submitted by ten Member States Australia Belarus Brunei Cuba Oman Qatar Russia Saudi Arabia the United Kingdom and the United States The Russian statement referred to information weapons the use of which can have devastating consequences comparable to the effect of weapons of mass destruction It proposed that the General Assembly adopt resolutions on the question of information security with a View to reducing the threat of the use of information for terrorist criminal or military purposes which would help generate international principles a regime a code of conduct for States with a View to strengthening international information security and ultimately to a multilateral international legal instrument Aside om Russia only Belarus and Cuba expressed support for the development of httemational legal principles in the eld of information security other than cooperation in suppressing computer crime and terrorism The United States and the United Kingdom stated that it was premature to attempt to formulate overarching principles pertaining to information security and that for the present international efforts should focus on measures to combat computer crime and terrorism 53 The Secretary General ventured no opinion an the subject DOC 10 August 1999 X GB SERVATIONS None 54