6th European Conference - Academic Conferences

Julie Ryan and Daniel Ryan
commanders have struggled to balance the destructive forces of armed combat with national and
international humanitarian concerns, (Kolb 1997, n. 3) leading to the twin concepts of jus ad bellum —
“the conditions under which belligerents might justly resort to the use of armed force as a means of
conflict resolution” (Hensel 2008, p. 5) — and jus in bello —“the conditions for the just employment of
armed force at the strategic, operational and tactical levels during periods of armed hostilities” (Hensel
2008, p. 5) — that together comprise the notions of just war. The notion of jus in bello (“justice in war”)
was known to Sun Tzu in 4 th century BCE China. (Giles) Even, so, the concept of jus in bello was
more slow to develop than jus ad bellum. In addition to the United Nations Charter, limitations on the
use of military force include inter alia the Geneva Conventions and Protocols, and the Hague
Conventions.
2. Cyberwar
As human beings have moved into cyberspace, they have begun to engage in all the usual types of
human behavior, good and bad, allowed by the technology: communicating, working, contracting,
playing, and socializing, as well as stealing, breaching contracts, engaging in tortious behavior, and
invading other users’ privacy. Now, nation-states are looking at cyberspace as place to conduct
warfare operations, and terrorists are examining the possibilities inherent in asymmetric attacks
through cyberspace on critical infrastructures.
The “nature” of cyberspace, however, differs in significant ways from the physical, electrical, chemical,
and photonic properties of “real” space. Communications across the Internet take the form of packets
containing addressing and administrative data as well as the intended bits being exchanged. ("What is
a packet?") The paths taken by packets exchanged across the Internet are under the control of
algorithms within the switches that relay the packets. (Tyson 2001) The paths are neither known to
nor controllable by the users of the network.
Traditional approaches developed in real space for responding to misbehavior are hampered in
cyberspace by difficulties in attribution, and only a loose correlation exists between “location” in
cyberspace and location of users and cyber equipment within traditional legal jurisdictions. These
realities will certainly impact the development of weapons, strategies, doctrines and tactics for use in
cyberwar and countering cyberterrorism. Nevertheless, nations will undoubtedly seek to exercise and
enhance national power by means of information operations in cyberspace, and the laws of armed
conflict that have served civilized nations well in real space must be examined to determine how they
can be used, and if they must be changed, to meet the realities of cyberwar and cyberterrorism. This
paper will specifically address the legal issues associated with nation-state neutrality as applicable to
these new realities.
3. Neutrality during periods of belligerency
“Neutrality” refers to concepts in customary international law and treaty law concerning the nonparticipation
of some nations in warfare when a state of belligerency exists among other nations. The
laws of neutrality presuppose the coexistence of war and peace – belligerents and their allies at war
with other belligerents and their allies, while diplomacy, commerce, communications and so forth
continue with and among nations not involved in the belligerencies, both neutral states with other
neutral nations and neutral states with the belligerents. (Neff 2000, p. 1. Cited by Kelsey 2008, p.
1442) Neutrality is a “legal, temporary situation of one state in relation to a conflict between two or
more states. Neutrality consists in not participating directly in the war, through not rendering
assistance to any belligerent party.” (Osmanczyk & Mango 2004, A-F, p. 1547) It may be manifested
by unilateral declaration or by entry into bilateral or multilateral treaties. Grotius identified two rules for
neutrals: (1) neutrals should neither strengthen the position of a belligerent power with an unjust
cause, nor hinder the position of a belligerent with a just cause, (Book III, Chapter XVII (III)(1))and (2)
warring parties should be treated alike when the cause of the war is in doubt. (Book III, Chapter XVII
(III)(1))
Even before the second half of the 19th century when the laws of war began to be
codified in multilateral treaties, some principles relating to the conduct of armed hostilities
had been included in bilateral treaties.... The rights and duties of neutrality in war,
especially at sea, have been addressed in a large number of bilateral treaties between
states from at least the early 17th century. [Footnote 12: W. E. Hall, The Rights and
Duties of Neutrals, Longman's Green, London, 1874, pages 27-46, in a chapter
surveying the growth of the law affecting belligerent and neutral states to the end of the
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