Wired Warfare: Computer Network Attack and Jus in Bello

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Full Title of Reference

Wired warfare: Computer Network Attack and Jus in Bello

Full Citation

Michael N. Schmitt, Wired warfare: Computer Network Attack and Jus in Bello, RICR (2002). Web

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Synopsis

In this piece, Schmitt discusses how computer network attacks (CNA) will challenge existing warfare doctrine, and what impact they will have on the principles of humanitarian law. Humanitarian law principles apply to CNA when they are attributable to a State and the consequences of the CNAs are intended to cause injury, death, damage or destruction.

If a CNA qualifies as an ‘attack’ according to a consequence-based analysis, its targets will be constrained by existing international law. Combatants and military objects are valid targets by their nature, but determining if they cross the threshold of “an effective contribution to military action” can be both subjective and challenging. Various interpretations of this clause will result in varying targeting options. Targeting civilians and civilian objects is restricted; however an assessment must be made to determine if the civilians are taking “direct part in hostilities,” which would cause them to forfeit their protection. In this assessment a narrow application of the “direct part in hostilities” standard would help preserve the overall protection of civilians. If civilians do take part in CNAs, the perpetrators would be illegal combatants. However, if the computer network operations they conduct did not qualify as “attacks” in a consequence-based analysis, they would not be illegal combatants and their civilian protections would stay intact.

Dual-use targets (serving both civilian and military purposes) remain targetable even if their military purposes are secondary to their civilian ones. Article 56 of Additional Protocol I of the Geneva Convention (opposed by the U.S.) provides for specifically protected targets, those which an attack against might “cause the release of dangerous forces [e.g. water or radioactivity] and consequent severe losses among the civilian population”. This prohibition applies even if they are military objectives. Interestingly, CNA offers a means of neutralizing such facilities without risking the release of dangerous forces, a difficult task when using traditional kinetic weapons.

CNAs face the same limitations on striking legitimate targets as those of traditional kinetic weaponry, the most fundamental of which is discrimination. Specifically, CNAs must be discriminate in their ability to be directed against a specific target, as well as being executed in a manner that controls their effects. CNAs have great potential for use against targets that kinetic targeting would be likely to cause collateral civilian casualties. Regarding proportionality, the follow-on effects of CNAs must be considered, and computer experts will have to be available to assess potential collateral and incidental effects through the mission-planning process. Another consideration will be the use of information warfare (IW) for perfidy and ruses. The information-centric nature of IW makes it an excellent platform for proper military ruses, but there is also a great potential for abuse in the realm of perfidy.

Additional Notes and Highlights

Schmitt released a paper on 02 March, 2011 in the Naval War College International Law Studies, 2011 that further discusses key issues on this topic and uses cyber operations during the Georgia-Russia conflict in 2008 to frame aspects of the discussion. This paper can be found on SSRN.