6th European Conference - Academic Conferences

Julie Ryan and Daniel Ryan
or targeting information. Assuming that military units knew their own locations (not, necessarily, a
reasonable assumption in those days), unit locations may have been reported. In short, information
useful in prosecuting the belligerency, if it could be reduced to textual or numeric form suitable for
transmission across the communications systems in use at that time, could be transmitted without
imposing a burden on the neutral state to recognize or interdict the transmission. Some information
may have been encoded or enciphered, and transmission would have necessarily been slow by
today’s standards, but fast relative to other media and transmission capabilities available at the time
(foot, horseback, railroad, ship). (Lail 2002, p. 4)
Fast forward to the twenty-first century, and the ability to pass useful information across the Internet is
much enhanced. Now not just text and numbers may be communicated, but sound to at least the
level of voice recognition, imagery including high-quality color pictures, and measurement and
telemetry data, such as GPS data, can be communicated quickly and easily across the Internet.
Perhaps more importantly, tools and even weapons themselves, perhaps in the form of malware, can
be moved across the territory of neutrals and belligerents alike using the Internet. Those engaged in
such Internet communications do not and, for the most part cannot, know the path the packets
comprising their communications will take, much less can they control the path. In fact, some of the
packets may take different paths from other packets that are part of the same transmission, all
transparent to and beyond the control of those engaged in the communication.
Historically, warfare has involved the use of kinetic weapons (e.g. projectiles) to kill and destroy.
Modern warfare continues to use kinetic weapons, but may also use energy weapons – lasers, for
example; but note that Protocol IV of the 1980 Convention on Certain Conventional Weapons
specifically outlaws the use of blinding lasers – or may use logic weapons to attack and defend cyberdependent
infrastructures. In a modern warfare, information operations may be used in connection
with kinetic operations (as in the confrontation between Russia and Georgia in 2008), (Tikk 2010, p.
66ff) or can be used without ancillary kinetic operations (as in the confrontation between Russia and
Estonia in 2007). (Tikk 2010, p. 14ff) It is highly probable that we will never again see kinetic
operations of any great extent without a cyber component. Whether information operations among
nation-states without “armed conflict” will be deemed to be warfare probably depends upon the level
of destruction realized. (Article 51 of the United Nations Charter uses the expression “armed attack” to
justify war in self-defense by nation-states. However, the expression is not defined. It is not clear that
it is proper, or desirable, to view a purely cyber incident as an armed attack. See Wingfield 2006, p.
12. See also Sullivan 2010) Information operations among, between or with non-nation-states cannot,
by definition, be war, regardless of the level of destruction attained or the used of uniformed military
personnel by one side or another and despite the common misuse of the term in referring to conflicts
that are not between or among nation-states, as in “the global war on terror” (Rumsfeld Memo 16
October 2003) or the “war on drugs.” (Testimony of OMB Director Nussle)
While belligerents’ use of networks that cross a neutral’s territory can take place without violating the
neutrality status of the nations through whose territory the communications pass, Hague V(8) arguably
did not foresee that that use might include weapons. The rules concerning neutrality require that
passage of weapons or other military materials and equipment across the territory of a neutral must
be interdicted by the neutral state, and if it fails to do so, or is unable to do so, the belligerents against
whom the weapons or materials are to be used have a legal right to attack the transfer. (Brown 2006,
p. 210) Hague V(1) forbids land transfers and Hague V(2) forbids use of the atmosphere. Some
analysts have, therefore, concluded that cyberwar is not permitted under current neutrality law without
a likely violation of the claimed neutrality. (Kelsey2008, pp. 1441-6) They recommend changes to
bring the law into conformance with the reality of Internet transfers. (Kelsey 2008, pp. 1448-9) One
recommendation would focus on intent: the rules of neutrality would not be violated unless the
belligerent intended to use the information infrastructure of the neutral to deliver the weapons. The
neutral would not have to interdict an unintentional passage, and would not be subject to attack by the
other side based on an unintentional crossing of its territory by the cyber weapons. (Kelsey 2008, pp.
1448-9) This approach seems hopeless to us. The neutral probably has no knowledge that weapons
are passing across its territory, could realistically do nothing if it did know, and has even less access
to knowledge of the belligerent’s intent with respect to the crossing.
However, there is an alternative approach to framing the problem and it’s solution. Extra-atmospheric
movements of weapons (other than nuclear weapons) and military materials above the territory of
neutrals is permitted without imposing a duty on the neutral to interdict. The United Nations adopted a
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