1 Cf. Alvin Toffler &
Heidi Toffler, War and Anti-War 2 (1993) ("the way we make war
reflects the way we make wealth").
2 U.S. Department of the
Air Force, Cornerstones of Information Warfare (1995) at 2. For other
definitions of information warfare see, for example, Richard W. Aldrich,
The International Legal Implications of Information Warfare, U.S.
Air Force Institute for National Security Studies Occasional Paper
9, (April, 1996) at 3-5. The Air Forces definition is particularly
suitable for this report, which attempts a broad examination of potential
3 See, e.g., Douglas Waller,
Onward Cyber Soldiers, Time, Aug. 21, 1995, at 37.
4 E.g., Charles J. Dunlap,
How We Lost the High-Tech War of 2007, The Weekly Standard, Jan. 29,
1996 at 22.
5 John Arquilla & David
Ronfeldt, The Advent of Netwar (1996)
6 Roger C. Molander, Andrew
S. Riddile, Peter A. Wilson, Strategic Information Warfare: A New
Face of War 64 (1996). One observer has suggested that in the late
1960s, U.S. agents altered AT&T telephone switching equipment
that was exported to Poland, so that the U.S. could shut down land
based telecommunications on command. Winn Schwartau, Export Control
as a Proactive Defensive Information Warfare Mechanism, available
7 Molander, supra note 6,
8 Id., at 66.
9 Neil Munro, Pentagon Developing
Cyberspace Weapons, Washington Technology, June 22, 1995.
10 Peter Grier, Information
Warfare, Air Force Magazine (March 1995) 34, 35.
11 Barry Collin, Terrorism
and the New World Disorder, 11th International Symposium on Criminal
Justice Issues, Office of International Criminal Justice, The University
of Illinois at Chicago, 1996.
12 In September of 1996,
anonymous e-mail messages overwhelmed network routers in the U.S.
Northwest, disrupting regular e-mail delivery for almost six hours.
Seattle Times, Oct. 11, 1996, at A1, Edupage, October 16, 1996.
13 Molander, supra note
6, at 74
14 In 1988, a worm created
by Robert Morris, a Cornell University graduate student, spread over
the Internet to thousands of computers, including some military and
intelligence systems, paralyzing over 6,000 computers. Steve Lohr,
Ready, Aim, Zap, N.Y. Times, Sept. 30, 1996, at D1, D2.
15 Sean P. Kanuck, Recent
Development, Information Warfare: New Challenges for Public International
Law, 37 Harv. Intl. L.J. 272, 289 (1996).
16 See, e.g., Tom Clancy,
Debt of Honor (1994).
17 Vienna Convention on
the Law of Treaties(1969), UN doc. A/CONF.39/27. A third source of
international law is jus cogens, peremptory norms that have the character
of supreme law and which cannot be modified by treaty or ordinary
customary law. Id., Art. 53, 64. Louis Henkin, International Law:
Politics and Values 38-39 (1995). Although no satisfactory way to
identify jus cogens exists, some have argued that it prohibits (although
perhaps not effectively) genocide, slavery and the slave trade, and
18 Henkin, supra note 17,
19 Id., at 29-38.
20 Jacobellis v. Ohio, 378
U.S. 184, 197 (1964) (Stewart J., concurring).
21 E.g., Frank H. Foster
& Robert L. Shook, Patents, Copyrights, and Trademarks (2d ed.
22 Jonathan A. Charney,
May The President Violate Customary International Law?: The Power
of the Executive Branch of the United States Government to violate
Customary International Law, 80 Am. J. Intl L. 913, 914 (1986).
23 Macbeth, Act V.
24 Mark W. Janis, An Introduction
to International Law 1 (2d ed. 1993)
25 See Parts II.C., III.
E.2.a , infra (Discussions of "force" and "armed attack").
26 An "infoblockade"
requiring the use, or denial, of third countries assets or territory
might require those countries consent, or might violate their
borders. See Part II.B.1, infra.
27 Although a naval blockade
would generally not violate a nations borders, it would constitute
a physical disruption of a nations sovereign rights to freedom
of the seas, which could be considered analogous to the border intrusion.
28 See Part II. B. 2., infra.
29 Although the U.S. Constitution
only explicitly makes treaties part of U.S. law, the U.S. Supreme
Court appears to have included customary law within the law of the
land. U.S. Const., Art. VI; The Paquete Habana, 175 U.S. 677, 700
(1900) ("International law is part of our law, and must be ascertained
and administered by the courts of justice of appropriate jurisdiction
. . "). Henkin, supra note 17, at 68-71
30 This report does not
address issues arising under U.S. domestic law, or the domestic laws
of other countries. Such issues would include the source and allocation
of authority for defense and offensive measures during both war and
peace, the allocation of liability for protection of critical infrastructures,
and the potential conflict between individual liberties (including
freedom of expression under the First Amendment to the U.S. Constitution)
and national security. For a discussion of the application of some
U.S. domestic law to information warfare activities, see Science Applications
International Corporations, Information Warfare: Legal, Regulatory,
Policy and Organizational Considerations for Assurance, (July 4, 1995).
31 See Legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. ___ 21 (July
8, 1996) (hereinafter, "Advisory Opinion").
32 Advisory Opinion, 86.
33 Although founded well
before the establishment of the United Nations, the ITU is now part
of the UN system.
34 1 Gerd D. Wallenstein,
International Telecommunications Agreements 67-69 (1986).
35 Harold M. White, Jr.
& Rita Lauria, The Impact of New Communication Technologies on
International Telecommunication Law and Policy: Cyberspace and the
Restructuring of the International Telecommunication Union, 32 Cal.
W.L. Rev. 1 (1995).
36 George A. Codding, The
International Telecommunication Union 84-87 (1952). Even the Titanic
disaster might have been avoided, or more of its passengers rescued,
but for Marconi employees who refused communications from operators
using non-Marconi equipment. White & Lauria, supra note 35, at
37 International Telecommunications
Convention (hereinafter "ITC"), Art. 35.
38 Sara Anne Hook, Comment,
Allocation of the Radio Spectrum: Is the Sky the Limit? 3 Ind. Int'l
& Comp. L.R. 319, 325 (1993).
39 ITC, Art. 38.
40 Radio Regs Art. 18, Sec.
2(c). 4 Umberto Leanza, The Future of International Telecommunications
41 Radio Regs Art. 18, Howard
A. Bender, Note, The Case of the Sarah: A Testing Ground for the Regulation
of Radio Piracy in the United States, 12 Fordham Intl L.J. 67,
69 (1988). This prohibition does not apply to the truth or falsehood
of the underlying substance of a transmission but to the identification
of its transmitter and frequency.
42 ITC Art. 22 sec. 1.
43 ITC Art. 19.
44 Radio Rules (1923).
45 1 Wallenstein, supra
note 34, at 30-31.
46 Audrey L. Allison, Meeting
the Challenges of Change: The Reform of the International Telecommunication
Union, 45 Fed. Comm. L.J., 491, 514 (1993); Hook, supra note 38, at
328; Christian A. Herter, The Electromagnetic Spectrum: A Critical
Natural Resource, 25 Nat. Resources J. 651, 658 (1985).
47 Kanuck, supra note 15,
at 289 n.73; Stephen Gorove, Developments in Space Law 49 (1991) ("While
states generally abide by ITU resolutions, they are not legal bound
by them." See Part III.E.2.a., infra (discussion of "armed
48 Art. IV.
49 Art. 3(3)
50 Art. 3(1); Glenn Harlan
Reynolds, International Space Law: Into the Twenty-First Century,
Vand. J. Transnatl L. 225, 230 (1992). The United States, among
other spacefaring powers, has not ratified the Moon Treaty.
51 10 I.L.M 909.
52 31 U.S.T. 1, 1143 U.N.T.S.
53 The use of nuclear weapons
in space to generate electromagnetic pulses (EMP) would seem to be
54 See Colleen Driscoll
Sullivan, The Prevention of an Arms Race in Outer Space: An Emerging
Principle of International Law, 4 Temp. Intl & Comp. L.J.
211, 230-34 (1990).
55 Reynolds, supra note
50 at 241.
56 Sullivan, supra note
54 at 213-14
57 See, infra Part III.
C., and Part III. E. 2. a. (discussions of "force" and "armed
58 See Reynolds, supra note
50, at 241 (unclear whether space-based lasers would count as "weapons
of mass destruction"). See also John M. Orr, Comment, The Treaty
on Outer Space: An Evaluation of the Arms Control Provisions, 7 Colum.
J. Transnat'l L. 259 (1968).
59 Aldrich, supra note 2,
60 Advisory Opinion 64.
61 Kanuck, supra note 15,
at 276; Abram N. Shulsky, Silent Warfare: Understanding the World
of Intelligence 103 (2d ed. 1993)
62 Reynolds, supra note
50 at 239-41; Mark Orlove, Spaced Out: The Third World Looks for a
Way in to Outer Space, 4 Conn. J. Int'l L. L. 597, 629-32 (1989).
63 A 1923 U.S.-British Claims
Arbitration Tribunal granted no compensation to the British cable
company whose Manila-Hong Kong cable the U.S. had cut during the Spanish-American
War. Ranier Lagoni, Cables, Submarine, 1 Max Planck Institute for
Comparative Public Law and International Law, Encyclopedia of Public
International Law 516, 517-19 (1992).
65 Lagoni, supra note 63,
66 E.g., Protocol Additional
to the Geneva Conventions of 12 August 1949; and Relating to the Protection
of Victims of International Armed Conflicts (1977) (hereinafter Additional
Protocol I). Although the United States has not ratified the Additional
Protocol, the protocol reflects much customary and conventional international
law. Advisory Opinion at 84.
67 Hague Convention (V)
Respecting the Rights and Duties of Neutral Powers and Persons in
Case of War on Land (1907) (hereinafter "Hague V"), Art.
68 See United Nations Manual
on the Prevention and Control of Computer-Related Crime, 261-264 (1993)
(hereinafter "UN Manual").
69 See Part III. C., infra.
70 Hague V, Art. 2, 5. Similarly,
under the unratified 1925 Hague Air Warfare Rules neutrals were obliged
to prevent the entry of belligerent military aircraft into their airspace,
compel their landing, and prevent their departure .
71 Hague V, Art. 3, 5.
72 Hague V, Art. 8.
73 Hague V, 1923 Radio Rules.
74 1 Howard S. Levie, The
Code of Armed Conflict 123 (1986).
75 Such law includes the
Geneva Convention of 1949, The Hague Convention (IV) Respecting the
Laws and Customs of War on Land (1907) (hereinafter "Hague IV"),
the Genocide Convention, and the Nuremberg Charter. Advisory Opinion
76 Advisory Opinion 77
77 Advisory Opinion 86
78 Judith Gail Gardam, Proportionality
and Force in International Law, 87 Am. J. Intl L. 391, 396 (1993).
79 Hague IV, Art. 25
80 Statute of the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia Since 1991 (1993) (hereinafter, "Yugoslavia
81 No defendants were convicted
of such bombing at Nuremberg. Given the extent of the Allied bombing
of Germany and Japan, such convictions might have seemed hypocritical;
this omission, though, may have undermined the viability of this principle
of international law. See Howard S. Levie, Terrorism in War: The Law
of War Crimes (1992). Nevertheless, the Nuremberg tribunal reaffirmed
that attacks directed at civilians as civilians was illegal. George
Bunn, US Law of Nuclear Weapons, 32 Naval War College Rev. 46, 58
(1984). The inclusion of indictments for attacks against civilians
in the Charter of the Yugoslavia tribunal further attests to some
measure of survival of the principle.
82 Additional Protocol I,
83 Advisory Opinion 78;
Gardam, supra note 78, at 410.
84 See discussion of proportionality
in response to attacks, Part III. E. 2. b., infra.
85 Gardam, supra note 78,
86 Id., at 407-08; Committee
on International Arms Control and Security Affairs & Committee
on International Law, The Use of Armed Force in International Affairs:
The Case of Panama, 47 Rec. Assoc. Bar City N.Y. 604, 683-84 (1992).
87 Hague II, Hague IV, Additional
88 See, e.g., Saint Petersburg
Declaration of 1868 (only legitimate object of war is to weaken enemy's
military forces); Nuremberg Charter (prohibition against "wanton"
bombing; Hague IV, Art. 25 (prohibition against bombardment "by
whatever means" of undefended towns, dwellings or buildings);
89 See Additional Protocol
I, Art. 54(1) (starvation may not be used as tool of war).
90 Aldrich, supra note 2
91 James Winnefeld, Preston
Niblack & Dana Johnson, A League of Airmen: U.S. Airpower in the
Gulf War 205 (1994).
92 Eric J. Sterner, Digital
Pearl Harbor, National Security in the Information Age, National Security
Studies Quarterly (Summer 1996) 33, 43.
93 Kanuck, supra note 15,
94 Information Revolution
Spawns "Revolution in Security Affairs," Defense Daily,
June 8, 1995, at 1.
95 See Additional Protocol
I, Art. 56 (dangerous forces).
96 Richard Szafranski, A
Theory of Information Warfare: Preparing for 2020, Airpower Journal
97 See Colonel Brenda J.
Hollister, USAF, The Thomas P. Keenan, Jr. Memorial Lecture: The International
Criminal Tribunal for Yugoslavia, 39 A.F. L. Rev. 37, 40 (1996) (incitement
to genocide in former Yugoslavia as a war crime); J. Balzar, The Power
of Africas Airwaves, L.A. Times (Oct. 22, 1995) A1 (relationship
between hate radio and Rwandan genocide).
98 Michael N. Schmitt, State
Sponsored Assassination in International and Domestic Law, 17 Yale
J. Intl L. 609, 617 (1992).
99 Additional Protocol I,
100 Hague IV, Art. 23.
The provision only applies to the use of enemy uniforms in combat.
Trial of Skorzeny and Others, 9 W.C.R. 90, 93-94 (U.S. Zone-Germany,
Gen. Mil. Gov. Ct. 1947). Although Additional Protocol I, Art. 39(2)
bars the use of enemy uniforms for purposes other than attack as well,
the United States, which has not ratified the Protocol, resists that
provision as nonreflective of the nature of modern combat. Schmitt,
supra note 90, at 636.
101 This example was suggested
by Professor Daniel T. Kuehl of the National Defense University.
102 E.g., Reynolds, supra
note 50, at, at 239; Orlove, supra note 62, at 629-32.
103 E.g., Gary H. Anthes,
New Laws Sought for Information Warfare as Technology Outpaces the
Law, Computerworld, June 5, 1995, at 1.
104 The leading U.S. law
dictionary defines "war" as "Hostile contention by
means of armed forces, carried on between nations, states, or rulers,
or between citizens in the same nation or state." Blacks
Law Dictionary (6th ed. 1990) 1583, citing Gitlow v. Kiely, 44 F.2d
227, 233 (S.D.N.Y. 1930).
105 Clinton E. Cameron,
Note, Developing a Standard for Economically Related State Economic
Action, 13 Mich. J. Intl L. 218, 219 (1991).
106 Amendments of the Brazilian
Delegation to the Dumbarton Oaks Proposals, Doc. 2, 617(e)(4), 3 U.N.C.I.O.
Docs 251, 253-54 (1945). Part of the reason for the proposal's defeat
may have been the argument that economic measures were included in
Article 2(4)'s language referring to pressure in any manner "inconsistent
with the purposes of the United Nations." Cameron, supra note
105 at 225.
107 See Part III. E. 2
108 G.A. Res. 3314 (XXIX)
(December 14, 1974) (Hereinafter "Declaration on Aggression")
109 UN Charter, Art. 39.
110 Declaration on Aggression.,
111 Id., Art. 2.
112 The phrase "the
use of any weapons by a state against the territory of another"
could be read as applying to the non-lethal tools of information warfare.
However, because the provision in which it is included addresses bombardment
by the armed forces, and because "weapon," too, connotes
force or violence, this clause probably would not bring all of information
warfare within the concepts of "war," "force,"
or "aggression." See, e.g., New American Webster Dictionary
(1972), at 510 (defining "weapon" as "any instrument
used in fighting.")
113 Declaration on Aggression,
114 Cameron, supra note
105, at 230.
115 Advisory Opinion 85.
See Theodor Meron, The Time Has Come for the United States to Ratify
Geneva Protocol I, 88 Am. J. Int'l L. 678 (1994).
116 Additional Protocol
I, Art. 49(1); 1 Levie, supra note 74, at 33-34 (§ 151.2).
117 Note, Judicial Determination
of the End of the War, 47 Colum. L. Rev. 255 (1947) (hereinafter "Judicial
Determination"); 7 Moore Digest of International Law (1906) 153.
See also Hijo v. U.S., 194 U.S. 315 (1904) (cessation of hostilities
is not legal termination of war).
118 Joint Resolution of
July 2, 1921, 42 Stat 105 (1921); Judicial Determination, supra note
117, at 257,
119 UN Charter, Preamble.
121 Id., Art. I(1).
122 Id., Art. I(2).
123 Id., Art. I(3)
124 Id., Art. 2(3).
125 Id., Art. 2(4).
126 G.A. Res. 2625, UN
GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8082 (1970); Cameron,
supra note 105, at 235.
127 G.A. Res. 2131, 20th
Sess., Supp. No. 14, at 108, UN Doc. A/6014 (1965).
128 Cameron, supra note
105, at 235.
129 Kanuck, supra note
15, at 290-91.
130 See notes 17-22 supra
and accompanying text.
131 Kanuck, supra note
15, at 289
132 The sanctions that
such a country might employ to such an end might, of course, implicate
its obligations under such international agreements as the General
Agreement on Tariffs and Trade (GATT), and could subject the country
to international sanctions in response.
133 See generally, Cameron,
supra note 105, at, 242-243.
134 Wade D. David, European
Diplomacy in the New Eastern Question, 1906-1909, at 104 (1940).
135 Cameron, supra note
105, at, 242-43
136 M. Reza Ghods, Iran
in the 20th Century 187-89 (1969).
137 Andreas F. Lowenfeld,
Trade Controls for Political Ends, 313-21 (2d ed. 1983).
138 R.R. Baxter, The Law
of International Waterways 168-183 (1966); Ranier Lagoni, Canals in
1 Max Planck Institute for Comparative Public Law and International
Law, Encyclopedia of Public International Law 523, 526 (1992). A canal
becomes internationalized when, by treaty, declaration, or otherwise
it is declared open to free access and unimpeded navigation of ships
of all nations. The Panama Canal, for example, was internationalized
before its construction by the Hay-Pauncefote Treaty of 1901 between
the U.S. and Great Britain. This internationalization was reasserted
in the treaty by which the U.S. acquired the Canal Zone from Panama
in 1903. Baxter, supra note 138 at 170-71; Louis Henkin, Richard Crawford
Pugh, Oscar Schachter, Hans Smit, International Law Cases and Materials
(3d ed. 1993) 1263-64.
139 The covert nature of
such acts, however, makes their contribution to international law
suspect, and may actually reinforce the principle that such acts are
140 See discussion of "armed
attack," Part III. E. 2. a., infra.
141 UN Charter, Art. 39.
142 Id., Art. 41-49.
143 See, e.g., notes 3
- 16 supra and accompanying text, supra.
144 See, e.g., Kevin J.
Soo Hoo, Seymour E. Goodman, and Lawrence T. Greenberg, Terrorism
and the Information Revolution __ Survival ___ (1997) (forthcoming).
145 Caroline Osborne, a
British Crown Prosecutor, has characterized those who break into computer
systems as "stupid little nerds who have not yet discovered girls
and beer." Brian Foran, Information Warfare: Attacks on Personal
Information, 8th Annual Canadian Security Symposium: Business and
Security in an Electronic World, May 2, 1996.
146 Norman Menachem Feder,
Note, Reading the UN Charter Connotatively: Toward a New Definition
of Armed Attack, 19 N.Y.U.J. Intl L. & Politics 393, 412
147 Mary Fackler Schiavo,
"I Don't Like to Fly," Newsweek, May 20, 1996, at 27.
148 Peter G. Neumann, Computer
Related Risks 126-28 (1995). See also, M.E. Bowman, Is International
Law Ready for the Information Age? 19 Fordham Int'l L.J. 1935, 1939-40
149 E.g., Cyber Wars, The
Economist, (Jan. 13, 1996), at 77.
150 Neumann, supra note
148, at 115.
151 Id., at 37.
152 See Stefan Geisenheyner,
The Dangers Lurking in Military Software Production: Viruses, Trojan
Horses and Logic Bombs, Armada Int'l, Oct.-Nov. 1989, at 22.
153 Simson L. Garfinkel,
The Manchurian Printer, The Boston Globe, Mar 5, 1995, Focus Section,
154 See, e.g., Scott Sagan,
The Limits of Safety (1993); Charles Perrow, Normal Accidents (1984)
155 W. Michael Reisman,
The Constitutional Crisis in the United Nations, 87 Am. J. Int'l L.
83, 86 (1993).
156 Christopher C. Joyner
& Wayne P. Rothbaum, Libya and the Aerial Incident at Lockerbie:
What Lessons for International Extradition Law? 14 Mich. J. Intl
L. 222, 248 (1993).
157 Id., at 252.
158 Mark W. Janis, An Introduction
to International Law 1 (2d ed. 1993).
159 UN Manual, 265.
160 ICJ Reports 1949 at
161 See International Working
Group on Data Protection in Telecommunications, Data Protection on
the Internet (21 May 1996), J. Information L. & Tech., Sept. 30,
1996, available at http://elj.warwick.ac.uk/elj/jilt/consult/iwgdp/1.htm#problems.
162 UN Manual, 264.
163 U.S. Permanent Subcommittee
On Investigations, Committee on Governmental Affairs, Appendix "A"
to Staff Statement (June 5, 1996) at 5-6. The North Korean government
might not have found persuasive the argument that under international
law such an attack might not constitute.
164 See Hook, supra note
38, at 327; Herter, supra note 46, at 655.
165 The Vienna Concluding
Document of the Committee for Security and Cooperation In Europe (CSCE)
meeting in 1987, in its discussion of "Human Contacts" stated
that states were obligated to ensure that radio services operating
in accordance with the ITU Radio Regulations can be received within
their states. Peter Malanczuk, Information and Communication, Freedom
of, 2 Max Planck Institute for Comparative Public Law and International
Law, Encyclopedia of Public International Law 976, 986 (1992). Nevertheless,
it seems unlikely that states have renounced the ability to attempt
to jam foreign broadcasts within their borders.
166 U.S. General Accounting
Office, Computer Attacks at Department of Defense Pose Increasing
Risks, GAO/AIMD-96-84 (May 1996) 22.
167 Gary H. Anthes, Info-terrorist
Threat Growing, Computerworld, Jan. 30, 1995, at 1. See also Bowman,
supra note 148, at 1933. Even in the physical world, a country will
not be held responsible for acts conducted on its territory about
which it did not know, or could not have known. Corfu Channel, I.C.J.
Reports 1949, at 18.
168 On anonymity see Sameer
Parekh, Prospects for Remailers: Where is Anonymity Heading on the
Internet, First Monday, October, 1996, available at http://www.firstmonday.dk/.
169 Treaty Between the
United States of America and the Swiss Confederation on Mutual Assistance
in Criminal Matters, 27 U.S.T. 2019, T.I.A.S. No. 8302 (1977)
170 Under the U.S. Federal
Rules of Civil Procedure, letters rogatory are written communications
sent by a court in which a case is pending to a court or judge in
a foreign country, requesting that the testimony of a witness residing
within the latter courts jurisdiction be taken under that courts
local procedures and transmitted to the first court for use in the
pending case. Fed. R. Civ. P. 28.
171 Interpol is an organization,
headquartered in Lyon, France, supporting international cooperation
and exchange of information among police in over 150 countries. Fenton
Bresler, Interpol (1992).
172 Arguably, though, for
purposes of general deterrence, the fact of a response, and its vigor,
may be significant, regardless of whether the response is directed
toward the proper culprit, especially where the public remains unaware
that the actual culprits have escaped punishment. Cf. Jeremy Bentham,
Principles of Penal Law, Pt. II, bk. 1, ch. 3, in J. Bentham's Works
396, 402 (J. Bowring ed. 1843) ("When a man supposes pain to
be the consequence of an act, he is fed upon in such a manner as tends
with a certain force, to withdraw him, as it were, from the commission
of the act.") Nevertheless, and not surprisingly, knowingly or
willfully attacking foreign official or unofficial targets without
a substantive factual basis for such an attack would be unjustified
under international law. Case Concerning Military and Paramilitary
Activities in and Against Nicaragua, (Nicaragua v. U.S.), ICJ Reports
1986, 14, 195. Such attacks might violate U.S. law as well. See generally,
John Hart Ely, The American War in Indochina, Part II: The Unconstitutionality
of the War They Didnt Tell Us About, 42 Stan. L. Rev. 1093 (1990)
173 Vaughan Lowe, Case
and Comment, Lockerbie--Changing the Rules During the Game, 5 Cambridge
L.J. 408, 408-410 (1992)
174 U.S. v. Rauscher, 119
U.S. 407, 411-12 (1886); Factor v. Laubenheimer, 290 U.S. 276, 287
(1933). Indeed, under U.S. law the United States may not extradite
a citizen in the absence of a statute or treaty obligation. 18 U.S.C.
Sec. 3194; Valentine v. U.S. ex. rel. Neidecker, 299 U.S. 5, 8-9 (1936);
See also U.S. v. Alvarez-Machain, 504 U.S. 655 (1992); Barry Carter
& Philip Trimble, International Law 813-14 (2d ed. 1995).
175 For example, the Montreal
Convention on the Suppression of Unlawful Acts Against Civil Aviation
provides a basis for extradition among its signatories only for offenses
related to the goal enunciated in its title.
176 See, e.g., J. Storke,
Introduction to International Law 193-200 (9th ed. 1984); Joyner &
Rothbaum, supra note 156, at 235-36.
177 The subject of jurisdiction
over and in cyberspace is now the subject of great scholarly interest,
e.g. David R. Johnson and David Post, Law and Borders: The Rise of
Law in Cyberspace, 48 Stan. L.R. 1367 (1996); William S. Byassee,
Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual
Community, 30 Wake Forest L.R. 197 (1995); Henry H. Perritt, Jr.,
Computer Crimes and Torts in the Global Information Infrastructure:
Intermediaries and Jurisdiction, University of Oslo, October 12, 1995
(available at http://www.law.vill.edu/chron/articles/oslo/oslo12.htm),
although the topic does not yet appear to have been examined from
a national security perspective.
178 See The Eisler Extradition
Case, 43 Am. J. Int'l L. 487 (England 1949); Henkin, Pugh, et al.,
supra note 138 at 1112.
179 Who Stops the Hacker?
KIJK (Netherlands), May 1995, at 22-25.
180 Simson L. Garfinkel,
FBI Uses Hackers Tools to Sniff Out Hackers Lair, S.J.
Mercury News, April 8, 1996 at B1; U.S. Permanent Subcommittee On
Investigations, Committee on Governmental Affairs, Appendix "A"
to Staff Statement (June 5, 1996) at 7; Bob Drummond, U.S. Uses First
Court-Ordered Wiretap on Computer Network, Bloomberg, March 29, 1996.
181 See Bowman, supra note
148, at 1941.
182 Joyner & Rothbaum,
supra note 156, at 242-45
183 Marc Weller, Crisis
for the New World Order, 142 New L.J. 592 (May 1, 1992).
184 Joyner & Rothbaum,
supra note 156, at 248-49; Henkin, et al., at 1113; Liskofsky, The
Abu Daoud Case: Law or Politics, 7 Is. Yb. H. Rtg. 66 (1977).
185 Joyner & Rothbaum,
supra note 156, at 249.
186 In a different context,
the reluctance of some developing countries to provide intellectual
property protection for Western pharmaceutical companies products
has frustrated Western countries, as the developing nations hope to
benefit from technological advances without paying the profits that
the leading technological nations demand.
187 See, e.g., A. Michael
Froomkin, The Internet as a Source of Regulatory Arbitrage, in Borders
in Cyberspace, (Brian Kahin and Charles Nesson, eds. 1997)
188 Clifford Stoll, The
Cuckoos Egg (1989).
189 L.T. Greenberg &
S.E. Goodman, Is Big Brother Hanging By His Bootstraps? 39 Comm. ACM
11, 13 (July 1996); U.S. Dept. of State, Bureau for International
Narcotics and Law Enforcement Affairs, International Narcotics Control
Strategy Report 496-503, 581-82 (March 1996).
190 See, e.g., Robert G.
Lynch, Do State and Local Tax Incentives Work? (1996); Ian Ayres,
Judging Close Corporations in the Age of Statutes, 70 Wash. U.L.Q.
191 U.S. v. Alvarez-Machain,
504 U.S. 655 (1992).
192 Henkin, supra note
17, at 258-260. After the most famous international abduction, when
Israeli agents kidnapped Adolf Eichmann from Argentina and brought
him to Israel for trial for his role in the Holocaust, Argentina accepted
Israel's apology for violation of its sovereignty, but did not request
Eichmann's return. Id.
193 UN Charter, Art. 2(3).
194 UN Charter, Art. 2(4)
195 UN Charter, Art. 51.
196 ICJ Reports 1986, at
195, 232. Although the U.S. did not recognize the authority of the
ICJ to adjudicate the case, and Nicaragua has dropped its complaint,
the Court's analysis on this point, irrespective of the actual facts
of the case, seems consistent with international law.
197 ICJ Reports 1986, at
198 Feder, supra note 146,
199 The criminal code of
West Virginia, for example, sets out a virtual list of the traditional
elements of burglary: If any person shall, 1) in the nighttime, 2(a))
break and enter, or enter without breaking, or shall, 2(b)) in the
daytime, break and enter, 3) the dwelling house, or an outhouse adjoining
thereto or occupied therewith, 4) of another, 5) with intent to commit
a crime therein, he shall be deemed guilty of burglary. W. Va. Code
§ 61-3-11 (1996).
200 Restatement 3d, The
Foreign Relations Law of the United States (1987) sec. 905. See, e.g.,
George Bunn, Expanding Nuclear Options: Is the U.S. Negating its Non-Use
Pledges? Arms Control Today, May/June 1996, at 7, 9.
201 The humanitarian consideration
is discussed in Part II. B. 2., supra .
202 See Part II. C. 1.,
203 The comparability of
electronic intrusion to physical intrusion is not unquestionable,
though, and it is not inappropriate to use publicly available neutral
communications facilities for belligerent communications. See Part
II. B. 1., supra.
204 Of course, if the initial
attack is considered an "armed attack," the argument that
it is somehow distinct from actual force, and that therefore a conventional
military response would be disproportionate, would seem strained.
205 Feder, supra note 146,
at, 403-04. As an American professor who later became a Judge of the
International Court of Justice stated, "the right of self defense,
by its very nature must escape legal regulation." Philip C. Jessup,
A Modern Law of Nations 163. Historically, the U.S. government has
taken a broad view of self defense. During the negotiations for the
1928 Kellogg-Briand treaty, the U.S. argued that each nation "is
free at all times and regardless of treaty provisions to defend its
territory from attack or invasion and it alone is competent to decide
whether circumstances require recourse to war or peace." Robert
F. Turner, Covert Action and the Law, 20 Yale J. Intl L. 427,
433 & n.34 (1995). Furthermore, the language of Article 51 mentions
"inherent" rights, although the U.S. has been skeptical
of some nations assertion of inherent rights to respond militarily
to activities other than "armed attack." Feder, supra note
146, at 403-04.
206 As Emmet Paige, Assistant
Secretary of Defense for Command, Control, Communications and intelligence,
reportedly said in 1995, "We have an offensive capability, but
we cant discuss it. . . . [However] youd feel good if
you knew about it." Neil Munro, Pentagon Developing Cyberspace
Weapons, Washington Technology, (June 22, 1995).
207 Given the predisposition
of the United Nations, it would seem that the U.S. should only pursue
a declaration regarding information warfare if it wants to limit its
use, as the majority of other nations seem likely to fear U.S. capabilities
208 Henkin, supra note
17 at 37-38. See also, generally, Charney, supra note 22.
209 Such treaties included:
the Tokyo Convention on Offenses and Certain Other Acts Committed
Against on Board Aircraft (1963); the Hague Convention for the Suppression
of Unlawful Seizure of Aircraft (1970); and the Montreal Convention
on the Suppression of Unlawful Acts Against Civil Aviation (1973).
210 The Convention's coverage
would thus seem to apply to many new information attacks against aircraft
or the air traffic control system.
211 Between the provisions
of the Montreal Convention and the structures of the International
Civil Aviation Organization (ICAO), it is likely that the air traffic
control system has significant legal protections. Intentional destruction
of civil aircraft in flight is generally illegal, whether conducted
with information technology or explosives, and states have an obligation
to extradite or try the perpetrators of acts. The adequacy of physical
and technological protections of the air traffic control system is,
of course, another matter and is beyond the scope of this report.
212 Advisory Opinion 58-63
213 The possible applicability
of arms control for information warfare is discussed in David Elliott,
Lawrence Greenberg, and Kevin Soo Hoo, Strategic Information Warfare:
A New Arena for Arms Control? (1997)
214 Convention on the Prohibition
of the Development, Production and Stockpiling of Bacteriological
and Toxin Weapons and Their Destruction, (1972); Protocol for the
Prohibition of the Use in War of Asphyxiating, Poisonous, or Other
Gases, and of Bacteriological Methods of Warfare (1925).
215 Convention on the Prohibition
of Military or Any Other Hostile Use of Environmental Modification
216 Protocol on Blinding
Laser Weapons (1995); Burrus M. Carnahan & Marjorie Robertson,
Current Developments, The Protocol on "Blinding Laser Weapons":
A New Direction for International Humanitarian Law, 90 Am. J. Intl
L. 484 (1996).
| Index | Acknowledgments
| Preface | Executive
Summary | Chapter 1 | Chapter
2 | Chapter 3 | Chapter
4 | About the Authors | Endnotes