Why States Need an International Law for Information Operations

Full Citation

Duncan B. Hollis, Why States Need an International Law for Information Operations, 11 Lewis & Clark L. Rev. 1023 (2007). Web SSRN BibTeX

Categorization

• Issues: Cyberwar

Key Words

cyberwar, cyberterror, information operations, IO, information warfare, jus ad bellum, jus in bello, international humanitarian law, use of force, civilian distinction, perfidy, complexity, regulatory design, international law, estonia, denial of service attack, hactivists, computer network attack

Synopsis

This Article assesses the ways in which international law, specifically the rules regulating the use of force and the law of war, currently applies to Information Operations ("IO"). Conventional wisdom suggests existing rules can cover IO by analogy. The conventional wisdom is only half-right. This Article explains why the existing rules govern IO, but challenges the unstated assumption that they do so appropriately. Translating existing rules into the IO context produces extensive uncertainty, risking unintentional escalations of conflict where forces have differing interpretations of what is permissible. Alternatively, such uncertainty may discourage the use of IO even if it might produce less harm than traditional means of warfare. Beyond uncertainty, the existing legal framework is insufficient and overly complex. Existing rules have little to say about the non-state actors that will be at the center of future conflicts. And where the laws of war do not apply, even by analogy, an overwhelmingly complex set of other international and foreign law rules purport to govern IO.

To remedy such deficiencies, this Article proposes a new legal framework, an international law for information operations (ILIO). By adopting an ILIO, states could alleviate the uncertainty and complexity of the status quo, reduce transaction costs for states fighting global terror, and lessen the collateral costs of armed conflict itself. This Article concludes with a review of some of the regulatory design questions facing an ILIO, but does not offer any specific rules. Rather, its ultimate aim is to convince states and scholars about the need for an ILIO in the first place.

Additional Notes and Highlights

 I. INTRODUCTION
 II. UNDERSTANDING INFORMATION OPERATIONS
 III. THE EXISTING IO REGIME—INTERNATIONAL LAW BY ANALOGY 
 IV. THE NEED FOR AN INTERNATIONAL LAW FOR INFORMATION OPERATIONS (ILIO)
    A. Translation Problems
       1. The Prohibition on the Use of Force
       2. The Requirement of Civilian Distinction
       3. The Ban on Perfidy
    B. Insufficiency & Complexity
 V. ILIO’S BENEFITS
 VI. CONCLUSION