This Article examines Information Warfare--that is, actions taken to affect adversary information and information systems conducted during a crisis or conflict to achieve or promote specific objectives against the adversary. The Article begins with an explanation of the development and structure of the Internet. It then cites examples of the use of information strategies in recent conflicts.
Next, the Article turns to a discussion of the principles of neutrality in the U.N. Charter era. Specifically, the Article examines neutrality in the context of land warfare, naval warfare, aerial warfare, and outer space. Next, the Author discusses application of principles from each of these neutrality contexts to Information Warfare, including additional analysis of the principles of self-defense, reprisals, and retorsions.
The Author continues by exploring the difficulties in analogizing principles of neutrality, customary law, as well as treaty law to the information warfare context. Finally, the Author describes additional considerations that must be addressed in determining guiding principles of international law in the information age.
Information warfare (IW)(1) may become a new full-scale modality of conflict in this century as part of a revolutionary global shift from tangible to intangible methods of production and destruction.(2) Recent conflicts and other events illustrate the trend.
INTRODUCTION: CONFLICTS AND COMPUTER-BASED ATTACKS
During the 1999 Kosovo crisis and NATO bombing campaign, Yugoslav hackers reportedly inundated a NATO web site with viruses and thousands of e-mails daily, overloading the site.(3) Serbian supporters clogged non-military Internet sites in the United States in what has been characterized as the "first cyberwar."(4) Backers of Serbia also used e-mail to warn of NATO strikes and to send messages of support.(5) After NATO mistakenly bombed the Peoples' Republic of China (PRC) embassy in Belgrade, PRC-based sources brought down the U.S. White House web page and defaced the U.S. Embassy website in Beijing.(6) The U.S. military has acknowledged that NATO's air war against Serbia included "limited" computer warfare.(7) The United States mounted computer attacks on Yugoslav President Slobodon Milosevic's and other Serbian leaders' foreign bank accounts over the summer of 1999; "[i]n future wars, United States cyberwarriors will try to disable air defense systems, upset logistics and infect software ..., according to a Pentagon official."(8) Other countries or alliances, including rogue nations, may be tempted to resort to IW in the future.(9)
These Internet incursions and the responses to them had counterparts in more traditional methods of aiding Serbia. New NATO partner Hungary blocked a seventy-three-truck convoy, which included fuel tankers, armored trucks, and cargoes of food, medicine, and children's toys, from Belarus and Russia. The situation defused when Russia agreed to leave behind the armored trucks and truckloads of fuel.(10) Television broadcasts from Republika Srpska, an ethnic Serb ministate within neighboring Bosnia-Herzegovina, had unbalanced content favoring Serbia, including Serb state television programs, beamed to Bosnian broadcasters by satellite. British and U.S. officials threatened to close the station unless it changed its coverage.(11)
Although the Kosovo campaign was the first known major use of IW, the 1990-91 Gulf War was a harbinger of the future; information played a major role and decisively affected the battle for A1-Khafji. Coalition forces detected the night movement of Iraqi divisions far behind enemy lines through Joint Surveillance and Target Attack Radar System (JSTARS) aircraft and "unmanned reconnaissance aircraft."(12) Hackers in the Netherlands reportedly offered to help Iraq by penetrating and attacking coalition information networks, but Iraq rejected the offer.(13) Opponents' IW tactics could disrupt future coalition wars, however.(14) The same could be true for one-on-one disputes, such as the PRC-Taiwan confrontation or the Indonesia East Timor independence issue.(15) "Knowledge ... is now the central resource of destructivity, just as it is the central resource of productivity."(16)
Internet use (or abuse) on a worldwide scale not involving military action has occurred within the United States and other countries. In 1997, military security analysts uncovered and stopped computer hackers who had discovered a new way to attack open Pentagon networks on the Internet. The hackers tried to cover their tracks by initiating intrusions through an overseas site not related to where the hackers were.(17) Another attack in 1998 could have compromised military air strike planning.(18) In 1999 the Chernobyl and Melissa viruses wreaked havoc among unprotected computers worldwide.(19) In early 2000, attacks on Internet service providers, such as Yahoo!, and other major websites, such as eBay, E*Trade, and CNN.com, shut down major parts of the Internet. In May 2000 the "I love you" virus attacked e-mail systems, causing millions in damage worldwide.(20) It has been suggested that cyberspace usage was a factor in the Columbine High School tragedy in Littleton, Colorado.(21) Afterward, a wave of threats, some via the Internet and others in writing, graffiti, or by telephone, swept the United States.
Commentators, as well as a 1996 presidential Executive Order, postulate scenarios ranging from precipitation of major disasters--including the destruction of continuity of government, destruction of a national air control system, bringing down a military command and control system during a crucial battle, and alteration of medical data with resulting loss of life--to other serious problems--including major theft from banking systems and a loss of electric power, telecommunications, energy sources, water supply, or vital human services.(22) Computer misuse can distort election campaigns, thereby perverting the democratic process.(23) A possibility of domestic terrorist attacks through computer networks continues.(24) Commentators have suggested that some Internet misuse ripple effects may exist, including hijacking e-mail(25) and criminal activity preying on Internet users' fear of Y2K shutdowns.(26) (There was a hiccup in e-trading, and several big Internet stocks fell on U.S. exchanges after the early 2000 assault on the Internet.)(27) Any of the following may affect the Internet: natural phenomena, such as storms, floods, earthquakes; human carelessness like backhoes cutting phone lines; accidents such as rats chewing cables and system component failure; and oversights due to operator action, inaction, or lack of training.(28)
A recent series of war games involving attacks on U.S. "cyberspace" suggests that this country's ability and resolve to defend its overseas interests are put at risk by the sorts of IW attacks that could be within the means of unfriendly states in the near future. Coordinated attacks on the command and control of deploying U.S. forces, on U.S. allies, and on the public telephone network could derail an otherwise "routine" projection of military power. The games also show that neither government nor industry is well prepared for this threat, technically, institutionally, or intellectually.(29)
Nonstate actors, such as international crime rings, terrorists, separatists, and cults, can get IW weapons or hire IW warriors. "Compared to the acts of clumsy governments, their attacks could be hard to trace, punish, and deter. These are increasingly dispersed entities, interconnected by ... information technology."(30)
Roberta Cooper Ramo, American Bar Association President, likened the Internet to the Wild West of the United States in the nineteenth century:
What is remarkable about the Internet is that it creates a real-time, worldwide community. Like the first communities of all cultures, but particularly those of America's Old West, it is a community without laws, judges, or even sheriffs. It is a global village where the citizens are ... good Samaritans, holy monks, and evil Rasputins, where they devise self-help solutions to problems, and use capital punishment with no due process. An entire world exists on your home or office computer screen. In the electronic window you can see American ingenuity, public-spirited volunteers that rival the Red Cross, and a can-do attitude along with the rough-and-ready behavior of the OK Corral. It is a place without race, gender, or age. The global economy was made possible by modern transportation. The global society exists in its earliest primitive stage on the Internet.(31) Ms. Ramo may have misstated one point and overstated another. More than American ingenuity is afoot on the Internet. There is law, including international law, to be applied in the information age like any other time, including the era of the Old West. What will be interesting to observe, from a social perspective, is not whether the new frontier of the information age closes, but when it does. The U.S. western frontier is said to have closed about 1890,(32) scant decades after the U.S. Army, Native Americans, Wyatt Earp, Wild Bill Hickok, Doc Holliday, the James brothers, other gangs of bank robbers and cattle thieves, miners and timber companies, feuding sheepmen and cattle barons and their ilk, rode and sometimes abused the range and the great spaces of the West. Their east and west coast counterparts, U.S. industry's so-called robber barons, some of whom were involved in the West's economic infrastructure (e.g., the railroads carrying the mails the gangs robbed), began to fall to the Sherman Antitrust Act and the trust-busters, beginning about the same time.(33) Will the information age head to OK Corrals even more quickly?(34) We may not be at high noon, but that time may be coming soon.
This Article examines issues from the perspective of the international law of neutrality and its relationship to...