6th European Conference - Academic Conferences

Neutrality in the Context of Cyberwar
Julie Ryan 1 and Daniel Ryan 2
1 The George Washington University, Washington, USA
2 National Defense University, Washington, USA
jjchryan@gwu.edu
ryand@ndu.edu
Abstract: This paper will examine the legal antecedents of the concepts of neutrality and current enforceability of
declarations of neutrality in the context of information operations amongst belligerents. This is a non-trivial point
of understanding, given the potential for belligerents to use and abuse infrastructure elements owned and/or
operated by nation states desiring to remain neutral. The analysis will consider the instantiated concepts of
neutrality, the potential for expanding or contracting the concepts of neutrality in the context of cyberwar, and the
possibility of erosion of neutrality in cyberwar scenarios. We have a notion enshrined in international law that
says that you don't lose your neutrality if belligerents use your telephone lines or telegraph lines to communicate
even if they are crossing your territory, even if they are passing operational orders. The problem with cyberwar is
that they are potentially not just transferring orders but also potentially weapons -- cyber-weapons. So it becomes
a more complex problem and the challenge is to understand at what point the nation state should be required to
act, or if such a point exists at all. This analysis will examine the intersection between technology and law in
regards to this issue.
Keywords: neutrality; law of armed conflict; international humanitarian law; cyberwar
1. War and the laws of armed conflict
During less than one percent of the last two million or so years of human evolution has agriculture and
animal husbandry replaced the hunter-gatherer existence as a characteristic way of life. (Gat 2006, p.
4) During the hunter-gatherer phase, humans engaged in endemic primitive warfare. (Keegan 1193,
p. 5 and pp. 115ff) As technology evolved, it influenced – and was influenced by – warfare, producing
revolutions in military affairs. (Boot 2006, p. 8) The longbow, stirrups, gunpowder, conoidal bullets,
machine guns, aircraft, radar, sonar, rockets and spacecraft, and now computers and precisionguided
weapons, are but a small sample of the technologies that have continuously changed the face
of warfare throughout history. As warfare became the province of nation-states, belligerencies
between and among nations led to some states declaring their intent to remain neutral, and the
development of conditions under which their neutrality was recognized by the belligerents and other
conditions under which neutrality was lost. This paper addresses modern concepts of neutrality, and
explores the potential for, and perhaps need to, change our concepts of neutrality in the context of
cyberwar as information technologies change warfare as it was previously practiced.
War is “a condition of armed hostility between States,” (Hyde 1945, p. 1686. Cited in Elsea &
Grimmett 2007, p. 23) or “a contention, through the use of armed force, between states, undertaken
for the purpose of overpowering another.” (von Glahn 1992. p. 669. Cited in Elsea & Grimmett 2007,
p. 23) War is “an armed conflict, or a state of belligerence, between two factions, states, nations,
coalitions or combinations thereof. Hostilities between the opponents may be initiated with or without
a formal declaration by any of the parties that a state of war exists.” (Dupuy, p. 261) Marcus Tullius
Cicero (106-43 BCE) famously said in an oration, Pro Tito Annio Milone ad iudicem oratio (Pro
Milone), in defense of Titus Annius Milo, who had been accused of murdering Publius Clodius
Pulcher, a political enemy, “Silent enim leges inter arma” (the law is silent in times of war), (Clark
1907) but his assertion wasn’t true in antiquity, and isn’t true today.
Except in limited conditions, war was made illegal by the Charter of the United Nations, which is a
treaty among the world’s nations signed in the aftermath of World War II, a terrible conflict in which
some fifty million (perhaps as many as eighty million) died worldwide. (White 2005) Article 2(4) of the
Charter provides that, “All Members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.” However, Article 51 makes use of military force
is permissible in self-defense, and Article 42 makes military force permissible if authorized by the
Security Council.
When military force is used, its use is subject to other treaties that limit the nature and extent of force
that may be employed in achieving military objectives. Philosophers, statesmen and military
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