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

• Threats and Actors: Military Networks (.mil), States, Terrorists
• Issues: Cyberwar; Government to Government
• Approaches: International Law (including Laws of War)

Key Words

Cyber Crime, Civilian Participation, Combatant Status, Cyber Warfare, Geneva Conventions, Kinetic Attack, Laws of War, National Security

Synopsis

Definition and Applicability of Existing International Law

This article starts by exploring the meaning of the Information Operation (IO) concept both in terms of its goals and the methods it employs. It goes on to argue that, notwithstanding any novelty of IO’s goals or methods, the law of war does apply, albeit by analogy, and surveys the conventional wisdom favoring that status quo.

The Flaws of Existing International Law With Regards to Information Operations

It then challenges this conventional wisdom by analyzing the uncertainty created in analogizing existing rules to IO—such as those prohibiting the use of force, requiring civilian distinction, or banning perfidy. It questions the sufficiency of these rules to address the threats posed by non-state actors, particularly global terrorists. In addition, this part demonstrates the complexity of the status quo, given the multiple, overlapping legal regimes applicable to IO.

The Need for New International Laws to Regulate Information Operations

Part V explains how a new set of rules, an ILIO, could remedy these problems while also serving a facilitative function that would allow the use of IO in appropriate circumstances in lieu of more traditional forms of force. The Article concludes by calling on states to draft an ILIO and explores some of the regulatory design questions that will undoubtedly accompany that exercise. In the end, this Article does not aim to offer any specific content for an ILIO, but rather seeks to address the threshold question of why states need an ILIO in the first place.

Additional Notes and Highlights

Expertise Required: Law - Moderate

 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