The Law of Armed Conflict's 'Wicked' Problem: Levee en Masse in Cyber Warfare

• Author: David Wallace - Shane R. Reeves
• Position: Colonel in the United States Army and a Professor and the Deputy Head, Department of Law at the United States Military Academy, West Point, New York - Major in the United States Army and an Assistant Professor at the United States Military Academy, West Point
• Pages: 646-668

International Law Studies 2013

646

The Law of Armed Conflict’s “Wicked”

Problem: Levée en Masse in Cyber Warfare

David Wallace

Shane R. Reeves*

The defense of the nation, an insurrection of the people must be initiated. . . . There is

absolutely no time for delay.

Walther Rathenau, “A Dark Day” (1918)

1

Cyberspace is the new frontier, full of possibilities to advance security and prosperity in

the 21st century. And yet, with these possibilities, also come new perils and new dangers.

The Internet is open. It's highly accessible, as it should be. But that also presents a new

terrain for warfare. It is a battlefield of the future where adversaries can seek to do harm

to our country, to our economy, and to our citizens. But the even greater danger —the

greater danger facing us in cyberspace goes beyond crime and it goes beyond harassment.

A cyber attack perpetrated by nation states [or] violent extremists groups could be as

destructive as the terrorist attack on 9/11. Such a destructive cyber-terrorist attack could

virtually paralyze the nation.

U.S. Secretary of Defense Leon E. Panetta

2

* David Wallace is a Colonel in the United States Army and a Professor and the Dep-

uty Head , Department of Law at the United States Military Academy, West Point, New

York. Shane Reeves is a Major in the United States Army and an Assistant Pr ofessor at the

United States Military Academy, West Point.

1

. Michael Geyer, People’s War: The German Debate About a Levée en Masse in October

1918, in THE PEOPLE IN ARMS: MILITARY MYTH AND NATIONAL MOBILIZATION SINCE

THE FRENCH REVOLUTION 124 (Daniel Moran & Arthur Waldron eds., 2003).

2

. Leon E. Panetta, Remarks by Secretary Panetta on Cybersecurity to the Business

Executives for National Security, New York City (Oct. 11, 2012).

Levée en Masse in Cyber Warfare Vol. 89

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A

I. INTRODUCTION

ttempting to categorize and label a contemporary armed conflict is a

complicated task. Not restricted to “hot battlefields,”

3

and an amalgamation

of asymmetric and conventional tactics, modern wars escape traditional con-

flict classifications.

4

International or non-international armed conflict and

irregular or conventional war are no longer workable distinctions as conflict

participants now engage “along a broad spectrum of operations and lethali-

ty.”

5

These aptly titled “hybrid armed conflicts”

6

create an unpredictable op-

erational environment

7

that is exacerbated by ever-increasing civilian partici-

pation in hostilities

8

and the emergence of new technologies.

9

Prognostica-

3

. “Hot battlefields” is a term used to reference geographically contained conflicts.

For example, Afghanistan, or, until recently, Iraq would be construed as a hot battlefield.

See, e.g., Ashley S. De eks, Pakistan’s Sovereignty and the Killing of Osama Bin Laden, AMERICAN

SOCIETY OF INTERNATIONAL LAW INSIGHTS, http://www.asil.org/insights110505.cfm

(last visited Feb. 9, 2012)(“the most controversial aspect . . . is the U.S. argument that this

conflict can and does extend beyond the “hot battlefield” of Afghanistan to w herever

members of al Qaeda are found”).

4

. U.S. DEPARTMENT OF DEFENSE, QUADRENNIAL DEFENSE REVIEW REPORT 8

(2010) [hereinafter QDR] (discussing the difficulty in categorizing contemporary con-

flicts).

5

. See Robert Gates, U.S. Se cretary of Defense, Remarks at Maxwell Air Force Base,

Alabama (Apr. 15, 2009), http://www.defense.gov/transcripts/transcript.aspx? transcrip-

tid=4403 (noting “black and white distinction[s] between irregular war and conventional

war is an outdated model”); see also QDR, supra note 4, at 8.

6

. See QDR, supra note 4, at 8 (stating “[t]he term ‘hybrid’ has recently been used to

capture the seemingly increased complexity of war, the multiplicity of actors involved, and

the blurring between traditional categories of conflict.”); see also Shane R. Reeves & Robert

E. Barnsby, The New Griffin of International Law: Hybrid Armed Conflicts, HARVARD INTER-

NATIONAL REVIEW, Winter 2013, at 16–18, available at http://hir.harvard.edu/mobile-

might/the-new-griffin-of-war (discussing the international legal challenges presented by

hybrid warfare).

7

. See U.S. Department of the Army, TRADOC Pam. 525 -3-1, The United States Ar-

my Operating Concept 2016–28, ¶ 2-2(a) (2010) [hereinafter CAPSTONE CONCEPT].

8

. See INTERNATIONAL COMMITTEE OF THE RED CROSS, INTERPRETIVE GUIDANCE

ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL

HUMANITARIAN LAW 7 (Nils Melzer ed., 2009) [hereinafter ICRC Interpretive Guidance],

available at http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf (stating “there

is little reason to believe that the current trend towards increased civilian participation in

hostilities will weaken over time”).

9

. See QDR, supra note 4, at 80.