Guest Post: Dave Graham reviews “The Future Law of Armed Conflict” (Part 1)
Today’s book review examines West Point’s Lieber Institute’s new work,“The Future Law of Armed Conflict.” Given the prestigious authors involved with this volume, I knew only one of the world’s top law of armed conflict experts could do the review. Fortunately, Dave Graham agreed, and as you can see from his bio below, he’s the perfect person to take on this formidable task.
What you will read today is Part 1 of his superb analysis of a sure-to-be-influential work. I believe you’ll find, as I did, that his review is truly masterfully rendered. Everyone with any interest in law of armed conflict matters needs to read this one.
A Review of “The Future Law of Armed Conflict”
by Colonel David E. Graham, USA (Ret.)
The United States Military Academy’s Lieber Institute for Law and Land Warfare has recently released Volume 7 of The Lieber Studies, “The Future Law of Armed Conflict”. In the introduction to this work, co-edited by Professor Matthew C. Waxman and Lieutenant Colonel Thomas W. Oakley, Professor Waxman alerts the reader to the fact that the book deals, essentially, with four overlapping categories of change particularly relevant to the future formulation of the Law of Armed Conflict (LOAC), often alternatively referred to, as the Law of War (LOW) and International Humanitarian Law (IHL):
- Novel technology, such as digital systems-– artificial intelligence, and hypersonic weapons that work to alter military capabilities and vulnerabilities,
- New and changing domains of conflict-– particularly cyber and space, as well as the large-scale information operations of “hybrid warfare”, all of which change where and how future conflicts will be waged,
- The evolving roles of actors other than States—particularly non-State (or loosely affiliated) armed groups, civil society organizations, and private corporations,
- Shifting geopolitical realities—such as the rise of China and the proliferation of weapons of mass destruction, factors that will alter strategic calculi, as well as the distribution of power.
While unstated in the introduction’s framing of the principal themes dealt with in this book, it is stage-setting to note, at the outset, that its contributors are almost unanimous in their belief that these categories of change will not be regulated by a LOAC reflected in newly negotiated international agreements.
Instead, there is general agreement that, ultimately, these evolving challenges will be met by both an adaptation of the current LOAC and the incremental development of relevant customary norms driven by State practice.
Waxman provides, in his introduction, a concise, but very useful, preview of the subject matter addressed in each of the book’s chapters. Additionally, with few exceptions, each chapter ends with a summary of its content. Given this fact, the audience for this book, which should be anyone dealing with, or interested in, LOAC-in or out of government-might well be tempted to simply “scan” these sections of this work.
This would be a mistake, for this publication actually serves two purposes. In speaking to what they view as the future of LOAC, as it pertains to a particular chapter’s subject matter, essentially each contributor also provides a succinct, but highly informative, assessment of the current state of the law applicable to the topic at hand. This, alone, makes this book well worth the read.
With this being said, given the structure of this publication, its contents are best reviewed by engaging in a brief look at each of its 14 chapters. This review will thus take the form of two installments, with each focusing on seven of the topical chapters. The first of these installments follows.
Future War, Future Law-a Historical Approach
Sir Adam Roberts opens the narrative by noting that, while technological change- to include land mines, machine guns, tanks, planes, submarines, radar, and missiles-has fundamentally contributed to both the development of war, itself, as well as the laws of war, the central purpose of this book is that of reflecting upon the future of legal controls on the use of force generally.
Thus, its chapters will focus not only on the “jus in bello”, but also on certain aspects of “jus ad bellum”. Then, in taking what he deems a historical approach toward the future of LOAC, he poses three questions.
- What are the hazards in assessing the changing character and technology of war?
The first hazard noted is that such an assessment almost always involves sheer speculation about the future-a most inexact science. Secondly, those who make predictions about future war have a tendency to be preoccupied exclusively with technological developments, neglecting the impact of both the political and historical context.
And, here, he offers the example of I.S. Bloch and his 1898 publication, “The Future of War”, in which he accurately foresaw the effect that certain weaponry would have on the battlefield, but failed to consider the economic impact of warfare and, in concentrating only on certain aspects of land war, failed to grasp the transformative aspects of air and tank warfare.
- How well have the Laws of War responded to technological change?
Here, Sir Adam observes that there have been many instances in which States have rushed to conclude an international agreement dealing with an advancing technology, only to see that effort falter-either due to the agreement’s failure to be ratified, or, upon entry into force, it proves to be ineffective in practice.
As proof of concept, he offers six examples: The 1899 and 1907 Hague Declaration on Balloons; the 1923 Hague Rules of Air Warfare; the 1936 London Proc`es-Verbal on Submarine Warfare; the 1907 Hague Convention VIII on Automatic Submarine Contact Mines; the Regime on Land Mines under the 1980 U.N. Certain Conventional Weapons (CCW) and 1997 Ottawa Landmines Conventions; and the 1925 Geneva Protocol on Gas and Bacteriological Warfare.
He observes that the first three of these agreements were failures, and, while opining that the next three arrangements have seen some degree of current success, he hesitates to say that this will prove to be true in the future.
- Is there a case for new treaties, or other forms of lawmaking?
As in the case of the other contributors to this book, Sir Adam expresses no great optimism for the possibility of new LOAC treaties emerging in the near future. He does, however, note several possible areas for such agreements-to include the protection of the environment during armed conflict, the management of cyberspace, weapons using artificial intelligence, and the placement of weapons in space. He then brings the chapter to a close by listing a number of factors to be considered when thought is given to the negotiation of a new treaty.
These include the impact that new LOAC agreements might have on coalition operations, the inherent risk of opening existing, long-standing, LOAC agreements to re-negotiation, and the growing tendency to produce Manuals and Guideline documents, vice treaties- a development in which he sees real value. To the reader’s benefit, he also provides a useful list of these documents.
Here, I would note, as a segue to an overview of the book’s next chapter, that another important Manual is soon to join this list—the “Virginia-Georgetown Manual on the Law Concerning the Use of Force: Rules and Commentaries on Jus ad Bellum”-a project currently reaching its conclusion, co-chaired by Yoram Dinstein and John Norton Moore, working with a group of international experts.
The Jus Ad Bellum Anno 2040: An Essay on Possible Trends and Challenges
Terry Gill advises that his essay on Jus ad Bellum consists of three parts: a brief survey of the present state of the law; a concise look at emerging new trends in the past 20 years-and how the law has been interpreted and adapted to meet these trends; and an assessment of how evolving technological changes and shifts in the distribution of power and influence at the international level might impact both the way in which the law develops, as well as its ability to address these changes
In summarizing the existing Jus ad Bellum, he notes several contemporary issues at play, to include those of whether self-defense allows for the preemptive use of force; whether States may invoke self-defense in response to a cyberattack; and how self-defense might be applied to attacks conducted by non-State actors.
Also of interest, here, is his insistence that, in the context of the existing law, all justifications put forward for the legitimacy of humanitarian intervention “are controversial, at best, and unlawful at worst”.
Through no fault of his own, Gill’s conclusive survey of the current Jus ad Bellum has now come into question, given Russia’s aggressive war against Ukraine. He opines that “[T]he law has remained more or less stable and generally accepted as binding since…put into place following the aftermath of the Second World War.” [N]o major power has openly repudiated the system as such….”
This, of course, is no longer the case-given the systematic rejection and violation of the most fundamental principles of both the Jus ad Bellum and Jus in Bello by a permanent member of the UN Security Council.
To his credit, however, he does recognize that events over the past 20 years, to include the U.S. invasion of Iraq, the questionable Security Council authorization of the use of force in Libya, the wars in Syria and Iraq, and Russia’s annexation of the Crimea, have, in fact, significantly strained the current security system.
In identifying emerging new trends, Gill speaks to what he views as the two most noteworthy developments in this area of the law: the increasing use of force against non-State armed groups (NAG) and how this law might be applied to the emerging technologies of unmanned and digital weapons-such as cyber and drones.
In examining the first of these issues, he focuses on whether the right of self-defense might be invoked in responding to attacks attributed to a NAG not operating under the control, or at the behest, of a State. With respect to the second, he examines whether the law relevant to the use of force is, in fact, capable of being applied to these specific weaponized technologies and, if so, how it is to be interpreted to accomplish this purpose.
In seeking to predict the manner in which the Jus ad Bellum might develop over the next two decades, Gill relies on a number of assumptions. Again, however, several of the most critical of these have been victimized by the Russian invasion of Ukraine; i.e., that the present members of the international community will continue to interact and clash on particular matters in much the same way as they have in the past and that the current structure of the international order will remain based on the same fundamental rules, principles, and processes that have been in place in the postwar era.
Notwithstanding the challenges posed to these assumptions by Russia’s actions, Gill draws upon these and a number of other well-reasoned ground rules to engage in an informative discussion of the impact that two emerging technologies will have on the law-artificial intelligence (AI) and hypersonic weapons.
While he concludes that weapon systems employing AI will have no significant impact on the Jus ad Bellum, he submits that the use of hypersonic weapons may well render the “Caroline standard” of an “imminent” attack moot, given that these weapons will essentially negate the ability of decision makers to use a temporal equation in determining when self-defense is necessary and justified.
This chapter ends with Gill’s assessment of how a changing distribution of power on the world stage might influence the manner in which the Jus ad Bellum is interpreted and applied, given what he foresees as an inevitable change in the membership and distribution of the permanent seats in the Security Council.
This, in turn, he contends, will lead to a Council that will be less likely to engage in nonconsensual intervention and a setting in which States will be less willing and capable of projecting military power outside their own zones of influence. Additionally, he submits, while the law may well look the same, it will be perceived and applied differently-in a more competitive environment involving more emerging powers, with divergent attitudes and agendas.
It remains to be seen the extent to which Gill’s chapter may require revision for some future publication in the wake of Russia’s violations of the most basic tenets of the law governing the use of force.
Coding the Law of Armed Conflict
In introducing the reader to this subject, Ashley Deeks speaks to how the military will-and will not (at least for the foreseeable future)-use artificial intelligence (AI) in ways that implicate LOAC. Recognizing the inherent challenges of encoding basic LOAC principles, such as proportionality and distinction, into fully autonomous lethal systems, the focus has been on more modest predictive algorithms that will, nevertheless, facilitate military operations.
That is, consider a system that processes video feeds and predicts whether a particular individual is a member of the armed forces, a civilian, a medic, or an unlawful combatant who may pose an imperative threat to security-an algorithm that provides decisional support, rather than making a legal, sometimes lethal, decision itself.
It is these types of systems with which this chapter deals, examining the respective roles that the law, the data and algorithms, and lawyers and data scientists will play in system development.
Deeks notes that a principal reason for the military’s attraction to AI is its ability to manage “doubt”. Questions, with no clear cut answers, arise constantly on a battlefield, particularly one occurring in an urban environment.
AI tools that assist in identifying anomalies and categorizing objects can result in a predictive analysis that may both substantially increase the confidence level of a decision maker and ensure LOAC compliance. And, critical decisions can be made more quickly and accurately.
Still, Deeks cautions that the work on coding, to date, has demonstrated that it is exceptionally difficult to directly translate into code legal concepts that are both abstract and highly context-dependent; i.e., the LOAC norms of proportionality, distinction, necessity, and feasibility.
Given this, she suggests that, instead of the military attempting to “code LOAC”, in its entirety, it focus on developing predictive algorithms that are both sensitive to the human user’s legal framework and assist in decision making.
She then offers a three-phase process as to how this might be done. She notes, however, that, even with respect to the development of these more modest military algorithms, substantial, identifiable, challenges exist. A discussion of these challenges then follows.
The final section of this essay deals with two considerations associated with what Deeks refers to as “decision making beyond code”. That is, should the military choose to pursue the development of predictive algorithms, this may well alter the manner in which States interpret LOAC norms, both internally and externally. Secondly, given the procedural demands of such algorithms, militaries could be prompted to re-evaluate how they currently engage in their LOAC analyses.
Regarding the first of these issues, she observes that, in the U.S., at least three governmental agencies-DOD, State, and Justice-and, on occasion, perhaps the National Security Council- would have to agree on all of the matters associated with the previously referenced three-step process used to develop predictive algorithms.
Deeks sees this as problematic, for reasons she notes-not the least of which being that the military may well (I would say, “will”) be reluctant to share the authority to both interpret and make algorithmic decisions regarding LOAC in a conflict environment.
With respect to the second consideration, she submits that every commander has his or her “personal algorithm”- one consisting of factors that lead to situations where, while one individual is willing to sign off on a strike, another is not. The availability and use of predictive algorithms may thus serve to pressure decision makers to more clearly articulate their non-computerized choices on the battlefield.
Accordingly, given the ever present “fog of war”, militaries may understandably prefer to leave the calculative formula driving combat decision making as somewhat opaque and subjective, relying, instead, on the “based on all of the surrounding facts and circumstances” standard currently in common use.
Deeks closes with the admonition that, even with the creation of more modest “LOAC” predictive algorithms, the learning curve for both military lawyers and programmers will be a steep one. And, the more sophisticated and far-reaching these algorithms become, the steeper this curve grows.
For now, she posits, leaving lawyers in the loop, in what she refers to as the “law-algorithm-law” process, is the most prudent choice. She cautions, however, that the opportunity to do so will most likely grow much smaller in the coming decades as militaries move from war to “hyperwar.”
Deeks approaches this highly speculative subject in a very realistic and practical way. Every reader will benefit from her insight.
Big Data and the Future of Armed Conflict in Cyberspace
Paul B. Stephan opens this chapter with the admonition that, increasingly, the most valuable property on the planet (big data) will reside in cyberspace, an asset that adversaries will inevitably take actions to affect.
Given this fact, under what circumstances, he queries, will LOAC (to include both jus ad bellum and jus in bello) be called upon to regulate such actions? And, thus begins an exceptionally informative essay on a subject about which a great many international and national security lawyers know very little.
Following a brief clarification of the meaning of “big data”, distinguishing big data (an input) from AI (an output), Stephan makes the assumption (a valid one, I believe) that the U.S. has or will seek to employ big data as a tool of national security and, in so doing, will increasingly compete with other AI superpowers in exploiting this resource as an essential tool for algorithm development and the production of AI.
He next moves to the all-important issue of whether and, if so, how LOAC might be employed to regulate the actions that a State might take against another’s data bases. In doing so, he reminds the reader that no treaty speaks to the status of big data under LOAC and, accordingly, then turns to a discussion of the two Tallinn manuals that deal with the applicability of international law to cyber warfare, publications currently considered as the definitive works on this subject.
Of importance, here, he notes, is the Manuals’ use of definitions to propose a distinction between cyber operations and cyberattacks, accomplished by distinguishing between objects (protected under LOAC when attacked), and objectives (the purpose of an attack). In brief, while the Manuals accept that the hardware component of cyber qualifies as an “object”, the majority of experts contributing to the Manuals concluded that data, itself, does not.
The result under this approach, then, is that, though LOAC applies to cyber hardware, it does not apply to cyber data. Within the context of this reasoning, interference with big data, per se, simply does not constitute an attack under LOAC.
This conclusion evolves, primarily, from the Manual’s Article 39 definition of a “cyberattack”: “A cyberattack is a cyber operation, offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction of objects.” In brief, under this view, LOAC has nothing to say about operations against big data, as long as the resulting harm is intangible.
Having referenced this position taken by the Manuals, Stephan notes that this approach has, nevertheless, failed to generate uniform acceptance. Submitting that interference with big data can both disrupt and destabilize, he asks why, in fact, LOAC should not be called upon to regulate such hostile and harmful behavior.
With this in mind, he then moves to a discussion of several of the issues that would be raised by applying LOAC to operations taken against data sets of such significant military, economic, and political importance that the law governing “retaliation” would be triggered. (It’s unclear as to what law Stephan is referring, here. Perhaps the law of “self-defense”?)
Regardless, from a purely LOAC perspective, he proceeds to observe that applying this law to operations taken against big data would bring into play the principles of distinction and proportionality- forcing, he contends, actors who would destroy or disrupt big data to limit their actions to assets that serve military purposes and to avoid excessive damage to civilian property. Indeed, he submits, attacks on big data that do not satisfy these principles might well be viewed as war crimes.
Stephan next discusses the applicability of LOAC to big data in the context of what he believes to be three general LOAC purposes: the provision of rules, the triggering of enforcement mechanisms, and the displacement of other legal regimes. His discussion, here, is far ranging.
From a rules standpoint, he contends that, in order to apply LOAC to big data, one must view this data as either an instrument of attack or the kind of target (an object), the impairment of which will be considered an attack-and, possibly, an “armed attack”.
Thus, he submits, LOAC can be utilized as a means of regulating State actions involving big data only if big-data-based cyber operations can be regarded, potentially, as a use of force-and thus, possibly, an “armed attack”, or if the impairment or destruction of a big data resource can be considered an attack-and, again, perhaps an “armed attack”.
In terms of LOAC triggering enforcement mechanisms, Stephan raises and discusses, at some length, two basic issues: (1) whether States may employ their big data, or target a Security Council-sanctioned State’s big data, either in the course of taking actions authorized by the Council or in exercising an inherent right of self-defense, and (2) whether actions that cause harm to a State’s big data may rise to the level of an “armed attack”, triggering the right of self-defense.
Here, I would offer a comment. In contending that the Security Council, as an enforcement mechanism, may authorize “whatever it wishes” when responding to a threat to peace and security (in itself a somewhat dubious claim), he notes that an open question exists as to whether this competence on the part of the Council relieves States operating under Council authorization from complying with LOAC. I believe it decidedly does not.
As to the displacement of other legal regimes, Stephan makes a reasoned argument that LOAC is much better suited than any other regime for the purpose of regulating actions that a State may take against another’s big data, primarily due to what he views as LOAC’s distinctive enforcement structure.
The essay closes with Stephan’s assessment that there is very little chance of some future multilateral convention being concluded that might specify the status of big data under LOAC. Instead, he posits that it will be the actions of big data States that will reflect their intent either to apply LOAC to acts involving big data, or not. That is, if regulation comes, it will be in the form of evolving customary law.
And he proceeds to discuss the types of such evidentiary State actions to look for in the years to come. For example, the probing of data bases to ascertain capabilities and to reverse engineer algorithms may be deemed acceptable; whereas, data poisoning to degrade the resource (including the exposing of secrets) may not.
In this way, States might determine that such norms exist by observing conduct, including evidence of instances when States have passed on opportunities to degrade. Finally, Stephan cautions that, while there may well be the emergence of norms such as these among the big data powers, imposing them on rogue States, such as North Korea, will pose a much greater challenge.
This essay is exceptionally informative and, consequently, of fundamental importance. Why? In the words of its author, “This chapter’s principal concern is that specialists in LOAC have not yet fully thought through this issue.” I agree.
Being more than you can be: Enhancement of Warfighters and the Law of Armed Conflict
Rain Liivoja advises that LOAC does not “expressly” regulate human enhancement. Why not? Because, in his view, LOAC’s application to such enhancement does not fit into this legal regime’s two prevailing regulatory boxes—the conduct of hostilities and the protection of persons not taking part in such.
Noting, quite correctly, that the legal literature on human military enhancement is scarce, he then proceeds to pose two overarching questions: (1) Does LOAC prohibit or restrict the enhancement of warfighters, and (2) If warfighters are enhanced in some way, what consequences evolve from this under LOAC?
Before moving to these questions, however, Liivoja observes that human enhancement can have two broad aims: providing individuals with abilities not ordinarily possessed by humans or improving some human ability beyond that which might be regarded as normal. An example of the first-a brain-computer interface (BCI), a system that enables the brain to communicate directly with an external device without using natural neuromuscular pathways.
As to the second aim, the enhancing of already existing human traits, pharmacological enhancement is far and away the most common. This includes, he notes, the use of certain drugs by the U.S. armed forces, under rigid medical supervision, when traditional fatigue countermeasures are deemed insufficient.
And, here, he also offers the reader valuable insight into the potential use of drugs for “left-of-bang interventions”-actions which refer to any medical, pharmacological, or surgical intervention delivered prior to trauma that may act to reduce morbidity and mortality after injury.
In addressing the core issue of whether LOAC prohibits or restricts the enhancement of warfighters, Liivoja queries: Could such warfighters be considered “weapons” for the purposes of LOAC? Could they be viewed as “means” of warfare? Could their use be deemed a “method” of warfare?
While rejecting the possibility of enhanced warfighters functioning as “weapons”, he nevertheless envisions that, when such individuals are so closely integrated with weapons that they effectively become part of the weapon system itself, they may well be considered a “means” of warfare.
He offers, in support of this conclusion, a specific type of BCI-controlled system. Too, he contends, it is possible that a military technology or tactic may become so dependent on enhanced warfighters that the enhancement, itself, becomes an essential aspect of a “method” of warfare.
Under these circumstances, Liivoja submits, it can be argued that LOAC might indeed place constraints on the use of enhanced warfighters on the battlefield. Having said this, however, following a brief look at the LOAC rules that could possibly apply to such a scenario, he concludes that, in the final analysis, these norms appear to be of very limited relevance. Of one thing he is certain, however. LOAC does not affirmatively “prohibit” the use of enhanced individuals in combat.
Liivoja next speaks to the essential thesis of his essay: “LOAC does prohibit the use of any enhancing intervention that diminishes the ability of a warfighter to comply with the law.” He notes, in this context, that the administration of any enhancing drug would be unlawful if it served to adversely affect the capacity of a combatant to make judgments required by LOAC.
And, while he indicates that such a prohibition is not specifically reflected in any LOAC treaty, he argues that this requirement flows, generally, from the obligation of States to comply with LOAC treaties “in good faith” (Art.26, Vienna Convention on the Law of Treaties) and, more specifically, in his view, from the LOAC treaty requirement that States “respect and ensure respect” for LOAC in all circumstances (as stipulated in Common Art. 1, 1949 Geneva Conventions, as well as in Protocols Additional I and II to these Conventions).
Though an interesting premise, this is obviously an approach toward subjecting enhancement on the battlefield to LOAC regulation that faces many obstacles in terms of practical and objective application.
The author subsequently turns to the issue of the potential criminal liability of the individual warfighter whose ability to comply with LOAC may have been adversely affected by enhancement. And, here, he discusses, at some length, a 2004 incident of two U.S. Air Force pilots involved in a “friendly fire” situation in Afghanistan, an event resulting in injury and loss of life.
The pilots involved had ingested (legally) a particular drug as a fatigue countermeasure. The issue at play thus became whether this drug had impacted their judgment. While the results of the criminal investigative hearing were mixed, the Article 32 Investigating Officer clearly recognized that the effect of the use of amphetamines on the judgment of the pilots-and the implications that such use had for their potential criminal responsibility-were matters of significant importance.
Here, I believe, the reader would have benefited from an update by the author as to whether the Air Force, 18 years later, has, in fact, formulated a lesson-learned policy on pilot use of fatigue suppressing drugs.
The essay ends with a brief look at the potential legal implications for medical personnel who may administer enhancement measures to warfighters on the battlefield. Liivoja posits the view that “acts harmful to the enemy” “may” well include biomedical activities going beyond the medical function of treating the sick and wounded.
If so, he submits that the conduct of human enhancement procedures “would” constitute “harmful” acts, arguably resulting in the loss of the protective status of the medical personnel involved. I would note, however, that the validity of this conclusion is obviously mitigated by his preceding use of the word, “may”.
As is the case in a number of the essays in this publication, Liivoja has produced a very thoughtful piece on a subject with which few attorneys responsible for providing LOAC advice are familiar. His work thus serves to effectively fill a void in the existing LOAC literature.
The Law of Cyber Conflict
Mike Schmitt opens his essay with an assessment that the normative fog surrounding cyber operations is slowly clearing, due, principally, to the publication of the two Tallinn Manuals dealing with this subject, the 2015 Group of Governmental Experts, ongoing U.N. efforts in this area, and, very significantly, individual States beginning to publicly set forth their views on this matter. ‘
Having said this, however, he notes that hostile cyber operations continue to occur, both in terms of frequency and severity. And, with this in mind, he advises the reader that the purpose of this chapter will thus be to examine the “general vector” of the international law governing cyberspace, focusing on inter-State conflict outside the context of “armed conflict”.
In undertaking this task, Schmitt employs an analytical process grounded on the premise that international law “necessarily” evolves to ensure that the resulting normative architecture responds to the legal challenges/requirements of the particular subject in issue.
This, in turn, is a process that he sees occurring in three ways: through new treaty law, through new norms of international customary law, and through the interpretation of existing treaty or customary law. In evoking this procedure, he then examines the outlook for the possibility of cyber normative evolution occurring through these mechanisms.
He expresses little optimism for the prospect of new treaty law being formulated in an effort to regulate cyber operations and is equally pessimistic regarding the crystallization of relevant customary norms, noting, analogously, that even statements of opinion juris concerning the evolution of cyber rules are rare.
Instead, he submits that it is in the context of that third mechanism, State interpretation of the manner in which the existing rules of international law are to be applied to cyberspace that most normative activity will occur.
And, while Schmitt acknowledges that both non-State actors (such as Microsoft) and non-State activities (with a reference here, not surprisingly, to Tallinn Manual 2.0) have been players in this ongoing interpretive process, he contends that this remains, primarily, a State-centric function. Accordingly, he next proceeds to undertake an examination of the interpretive positions taken by various States regarding “the international law of cyberspace.”
In conducting this assessment, Schmitt notes, as a preface, that, strategically, States might opt for two different approaches. They might seek clarity with respect to the manner in which existing international norms apply to cyber activities-thus minimizing escalatory misunderstandings, or, they might choose to foster normative ambiguity.
With respect to the latter, States with little respect for the rule of law may well view uncertainty as an exploitative advantage. However, he notes, rule of law States might also opt for such, determining that clarity would serve only to limit their operational flexibility and provide potential non-rule of law adversaries with an asymmetrical advantage. Would it not be more prudent to retain the ability to pick and choose how to characterize an opponent’s cyber operation, as well as that of determining when a right exists, under international law, to respond?
Having presented these strategic options, Schmitt then commences an extensive discussion of how States are currently approaching/interpreting what he views as the “substantive international law rules” applicable to cyberspace, in order to discern whether they have opted for one, or the other, of these approaches. He identifies these “rules” as: (1) Sovereignty, (2) Intervention”, (3) “Due Diligence”, (4) “Use of Force”, and (5) “Responses”.
- Sovereignty: Schmitt sees the ongoing debate over sovereignty in cyberspace as perhaps the leading indicator of the strategic direction in which States are moving in interpreting the international law applicable to cyberspace. He notes that Tallinn Manual 2.0 concludes that remotely conducted cyber operations can violate the sovereignty of a State into which they are conducted on the basis of either territorial inviolability or interference with, or disruption of, an inherently governmental function. What then follows is an informative discussion of the manner in which various States have disagreed with the apparently singular United Kingdom view that such operations can never constitute an internationally wrongful act on the basis of a violation of sovereignty, with most of these States offering their own assessments as to how certain cyber operations do indeed violate this substantive law concept. Of particular interest to U.S. readers will be Schmitt’s take on the approach taken by the U.S. on this matter-suggesting that it has certainly left open the prospect of joining the majority, “sovereignty-as-a-rule” group.
- Intervention: Here, the observation is made that it is widely accepted that a violation of the prohibition of intervention requires two elements-that the object of the intervention involves an area of activity that international law reserves to the State, and that the intervening activity be coercive in nature. The State activities of concern are said to include such matters as its economic, political, and social systems, as well as its foreign policy. And, while some discussion has focused on how this rule might be interpreted in a manner that would allow for the circumvention of the UK position on sovereignty, most has centered on what actions actually constitute unlawful “coercion”.
- Due Diligence: In terms of this “rule”, Schmitt accounts for the growing tendency of States to embrace the applicability of this norm to cyberspace, one that embodies the requirement that States act to halt hostile cyber operations by other States, or non-State actors, that are mounted from, or through, their territory, when these operations affect a legal right of another State under international law, such as sovereignty, and cause serious, adverse, consequences. He submits that it is clear that a growing number of States now accept this rule as hard law, driven by the fact that they have become increasingly aware of the limitations that actually accompany this obligation, particularly that of the absence of any requirement to take preventive measures, as well as the understanding that such an obligation exists to take only those measures feasible under the prevailing circumstances.
- Use of Force: Here, Schmitt concludes that no opposition has been expressed to treating the prohibition on the use of force, resident in Article 2(4) of the Charter and customary law, as a rule applicable to cyber operations. Importantly, as well, he submits that no State has challenged the interpretation that a cyber operation causing significant physical damage or injury qualifies as a use of force, and that, as with the rule of sovereignty, functional damage is to be viewed as the equivalent of physical damage for purposes of this prohibition. And, with respect to the concept of functional damage, he observes that a number of States have adopted the “scale and effects” test from the law of self-defense for evaluating when such damage constitutes a prohibited use of force. An informative discussion of the views of several States and international entities regarding the applicability of this test then follows.
- Responses: Schmitt contends that normative barriers to response options that might be taken against hostile cyber operations are dissipating, due to States now desiring that international law not only shield them from such actions, but that it also enable them to engage in “robust” cyber responses. Exemplary of this, he notes, is a willingness on the part of most States to accept the legality of the use of countermeasures in the cyber domain. And, in this context, he discusses both the issue of whether “notice” is required when a State wishes to engage in a responsive countermeasure and the growing notion of the use of collective countermeasures. This, in turn, is followed by a brief look at the “plea of necessity”, which, like countermeasures, is a concept that precludes wrongfulness-available to a State when it is facing “grave and imminent peril” to an “essential interest”- and no means of putting an end to this peril exists.
The rule of responses is next dealt with in the context of the Charter’s Article 51 right of self-defense against an “armed attack”. Here, Schmitt notes that, while a consensus does exist that a cyber operation generating significant damage, destruction, or death does qualify as an armed attack, there is no such consensus when an operation of this nature fails to result in these effects, even if it produces very serious, non-material consequences.
He observes, nevertheless, that there is a growing trend among States to accord more weight to the severity of the harm caused by a cyber operation, rather than its nature, when assessing the right to engage in a self-defense response. Finally, he observes that States are moving toward confirming the existence of a right of anticipatory self-defense-if an offensive cyber operation, at the level of an armed attack, appears to be imminent.
Mike Schmitt has, for years, served as a definitive voice when speaking to the applicability of LOAC to cyber operations. Here, once again, he has produced a most thoughtful and informative contribution to the writing on this subject.
The Laws of Neutrality in the Interconnected World-Mapping The Future Scenarios
Hitoshi Nasu opens his essay by assuring the reader that the law of neutrality remains relevant in today’s world, due, principally, he opines, as a result of the Security Council choosing to adopt an authorization model in the exercise of its collective enforcement powers and then failing to act when its deliberations reach a political impasse.
And this, he notes, is particularly relevant at a time when a growth in the various means of transmitting knowledge, goods, and services has created an environment in which military operations increasingly rely on interconnected infrastructure, such as cyber and space assets.
This fact, he contends, will bring change to the ways in which belligerents seek support and assistance from neutral States, an occurrence that will pose practical challenges to the basic premise upon which the entire legal regime of neutrality is grounded.
Accordingly, following a brief, but very useful review of the current law of neutrality as a whole, Nasu engages in an examination of what he believes to be the two variable factors now likely to affect State behavior toward neutrality during times of international armed conflict-one political and the other technological.
The geopolitical factor, he notes, comes in the form of the role that powerful States play in a conflict, as either a belligerent or a neutral, as well as their relationship and geographical proximity to the belligerents involved. And, in this context, Nasu reminds the reader that the law of neutrality depends, to a large extent, upon the neutral States’ ability to effectively exercise their rights and implement their obligations.
As to the technological consideration, he submits that technology now determines how modern warfare can be fought, thus directly dictating the manner in which belligerents engage with neutral States when pursuing their war-fighting and war-sustaining efforts.
Having established this analytical foundation, he then posits four possible scenarios by which to assess how law of neutrality boundaries might shift against the rights and obligations of belligerents-given the evolution of geopolitical and technological conditions that might well occur over the coming decades.
The first two of Nasu’s scenarios are based on a situation in which two technologically advanced States are engaged in hostilities as belligerents: first, in a technologically highly interconnected environment where less powerful States heavily rely upon, and thus have very few practical means to enforce or fulfill, their neutral rights and obligations (Apologetic Neutrality); and second, where even technologically inferior States can exercise a high degree of technological autonomy and control over technology-driven activities that take place in their territory (Egalitarian Neutrality).
The third scenario envisages a situation where technologically advanced States, while exercising the right of neutrality, offer covert support to a politically, economically, or ideologically favored belligerent by taking advantage of highly interconnected technological infrastructure (Benevolent Neutrality), while the fourth deals with a situation where, though technologically advanced neutral States are capable of exercising a high degree of technological autonomy and control, the belligerents involved in a conflict also possess the technological ability to detect violations of neutral obligations and can, accordingly, deprive the provision of external support by neutral States (Deontological Neutrality). (The language of this fourth scenario was somewhat confusing; my hope is that I interpreted it correctly). A full discussion of the neutrality-based issues associated with each of these scenarios then follows.
Nasu concludes his essay by recommending that these four identified scenarios serve as an analytical framework within which each State can develop its own strategic approach toward neutrality law-compliance-a strategy based on its political, economic, and other national interests, the prevailing geopolitical situation, and the degree to which it is capable of exercising technological autonomy and control over the use of interconnected infrastructures.
And, as a final note, he reminds us, once again, that the law of neutrality, as a whole, continues to remain relevant only as a legal consequence of the U.N.’s failure to effectively orchestrate and manage collective security.
The second installment of this review of “The Future Law of Armed Conflict” will appear in the coming weeks.
About the author:
Colonel (Retired) David E. Graham is the former Chair of the International/Operational Law Department–the Judge Advocate General’s School of the Army (TJAGSA), where he played the seminal role in developing the field of Operational Law; the former Director of the Center for Law and Military Operations, TJAGSA; the former Chief of the International/Operational Law Division—Office of The Judge Advocate General, Department of the Army; the former Executive Director—The Army’s Judge Advocate General’s Legal Center and School; and the former Associate Director, Center for National Security Law, the University of Virginia School of Law.
Currently, he is a Special Advisor to the ABA’s Standing Committee on Law and National Security; serves on the Editorial Board of the “Journal of National Security Law and Policy”; and is a Senior Fellow at the Georgetown Law Center’s Center on National Security. He is a Distinguished Graduate of the National War College and holds a B.A. from Texas A&M University, an M.A. in International Affairs from The George Washington University, a J.D. from the University of Texas School of Law, and a Certificate from The Hague Academy of International Law.
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. See also here.
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