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Wired warfare: Computer network attack and jus in bello

Published online by Cambridge University Press:  19 April 2010

Michael N. Schmitt
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International Review of the Red Cross , Volume 84 , Issue 846 , June 2002 , pp. 365 - 399
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Copyright © International Committee of the Red Cross 2002

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References

1 The United States National Military Strategy cites information superiority as a key element of its strategy for this century. “Information superiority is the capability to collect, process, and disseminate an uninterrupted flow of precise and reliable information, while exploiting and denying an adversar's ability to do the same.” Joint Chiefs of Staff, National Military Strategy (1997), <http://www.dtic.mil/jcs/nms/strategy.htm>, at n.p. For an excellent collection of essays on the nature of war in the 21st century, see Scales, Robert H. (ed.), Future War Anthology, Carlisle Barracks, Pa., US Army College, 2000.Google Scholar On the specific issue of information and conflict, see Metz, Stephan, Armed Conflict in the 21st Century: The Information Revolution and Post-Modern Warfare, Carlisle Barracks, Pa., US Army College, 2000Google Scholar; Owens, William A. and Offley, Edward, Lifting the Fog of War, John Hopkins University Press, Baltimore, 2000Google Scholar; Copeland, Thomas E. (ed.), The Information Revolution and National Security, Carlisle Barracks, Pa., US Army College, 2000CrossRefGoogle Scholar; Alberts, David S., Garstka, John J. and Stein, Frederick P., Network Centric Warfare: Developing and Leveraging Information Superiority, 44ISR Cooperative Research Program, Washington D.C., 1999Google Scholar; Kuehl, Dan, Strategic Information Warfare: A Concept, Working Paper 322, Strategic & Defence Studies Centre, Australian National University, Canberra, 1999Google Scholar; Khalilzad, Zalmay and White, John (eds), Strategic Appraisal: The Changing Role of Information Warfare, RAND, Santa Monica, 1999Google Scholar; Denning, Dorothy E., Information Warfare and Security, ACM Press, New York, 1999Google Scholar; Adams, James, The Next World War: Computers are the Weapons and the Front Line is Everywhere, Simon & Schuster, New York, 1998.Google Scholar

2 Joint Chiefs of Staff, Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1–02, 12 April 2001, p. 203 (hereinafter JP 1–02). Operations that might constitute information operations include operations security, psychological operations, military deception, electronic warfare, physical attack and computer network attack. See Joint Chiefs of Staff, joint Doctrine for Information Operations, Joint Publication 3–13, 9 October 1998Google Scholar, at I–9 (hereinafter JP 3–13).

3 At the strategic level, information operations can be employed to “achieve national objectives by influencing or affecting all elements (political, military, economic, or informational) of an adversary's or potential adversary's national power while protecting similar friendly elements”. At the operational level, the focus of information operations is “on affecting adversary lines of communication (LOCs), logistics, command and control (C2), and related capabilities and activities while protecting similar friendly capabilities and activities”, finally, at the tactical level the objective is to affect adversary “information and information systems relating to C2, intelligence, and other information-based processes directly relating to the conduct of military operations…”. JP 3–13, op. cit. (note 2), at 1–2 — 1–3.

4 JP 1–02, op. cit. (note 2), p. 203.

5 Ibid., p. 88. The USAF Intelligence Targeting Ouide, AF Pamphlet 14–210, 1 February 1998, para. 11.4.3, notes the following information warfare employment concepts:

Corruption — The alteration of information content; the manipulation of data to make it either nonsensical or inaccurate. Destroying existing knowledge.

Deception — A specific type of corruption; the alteration of, or adding to, information to portray a situation different from reality. Creating false knowledge to include masquerading.

Delay — The reversible slowing of the flow of information through the system, and the slowing of the acquisition and dissemination of new knowledge.

Denial — The reversible stopping of the flow of information for a period of time; although the information may be transmitted and used within friendly territory, the adversary is denied access to it. The prevention of the acquisition and dissemination of new knowledge.

Disruption — The reduction of the capacity to provide and/or process information (reversible). This is a combination of delay and corruption. The delay of the acquisition and dissemination of new knowledge and the destruction of existing knowledge.

Degradation — The permanent reduction in the capacity to provide and/or process information.

Destruction — The destruction of information before it can be transmitted; the permanent elimination of the capacity to provide and/or process information.

6 Thus electronic attack (EA) would not fall within this category. For instance, using an electromagnetic pulse to destroy a computer's electronics would be EA, whereas transmitting a code or instruction to a system's central processing unit to cause the power supply to short out would be CNA. Ibid.

7 On CNA and jus ad bellum, that body of international law governing tne legality of the resort to force by States, see Schmitt, Michael N., “Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework”, Colombia Journal of Transnational Law, Vol. 37, 1999, p. 885Google Scholar; Aldrich, Richard, “How Do You Know You are at War in the Information Age?”, Houston Journal of International Law, Vol. 22, 2000, p. 223.Google Scholar

8 For a discussion of CNA in the context of both law and ethics that conclude a new convention is required, see Bayles, William J., “The Ethics of Computer Network Attack”, Parameters, Spring 2001, p. 44.Google Scholar

9 On this point see Haslam, Emily, “Information Warfare: Technological Changes and International Law”, Journal of Conflict and Security Law, Vol. 5, 2000, p. 157.CrossRefGoogle Scholar See particularly her discussion of points made in Aldrich, Richard, “The International Legal Implications of Information Warfare”, Airpower Journal, Fall 1996, p. 99Google Scholar; and Shulman, Mark, “Discrimination in the Laws of Information Warfare”, Columbia Journal of Transnational Law, Vol. 37, 1999, p. 939.Google Scholar

10 Additional Protocol I to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 1(2), 12 December 1977, 1125 U.N.T.S. 3 (hereinafter Additional Protocol I). The original formulation of the Martens Clause in the preamble of the Hague Convention IV respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2295, I Bevans 634, states “the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations as they result from the usages established amoung civilized peoples, from the laws of humanity, and the dictates of the public conscience”, reprinted in Roberts, Adam and Guelff, Richard, Documents on the Laws of War, 3rd ed., Oxford University Press, Oxford, 2000, p. 67.Google Scholar

11 The Statute of the International Court of Justice defines custom as “a general practice accepted by law”. Statute of the International Court of Justice, 26 June 1977, Art. 38(i)(b), 59 Stat. 1031, T.S. No. 933, 3 Bevans 1153,1976 Y.B.U.N. 1052. The United States Restatement notes that custom “results from a general and consistent practice of states followed by them from a sense of legal obligation”. Restatement (Third), Foreign Relations Law of the United States, sec. 102(2) (1987). See also North Sea Continentat Shelf Cases, 3 ICJ Reports 1969, p. 44 (“Not only must the acts concerned amount to settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it.”); The Paquete Habana, 175 US 677, 20 S.Ct. 290,44 L.Ed 320 (1900); The S.S. Lotus (France v. Turkey), PCIJ (ser. A) No. 10, 1927; Asylum Case (Colombia v. Peru), 5 ICJ Reports, 1950, p. 266; Case Concerning Right of Passage over Indian Territory (Portugal v. India), ICJ Reports, 1960, p. 6. For academie comment on customary international law, see Goldsmith, Jack L. and Posner, Eric A., “Understanding the Resemblance Between Modern and Traditional Customary International Law”, Virginia journal of International Law, Vol. 40, 2000, p. 639Google Scholar; Kelly, Patrick, “The Twilight of Customary International Law”, Virginia journal of International Law, Vol. 40, 2000, p. 449Google Scholar; D'Amato, Anthony A., The Concept of Custom in International Law, Cornell University Press, Ithaca, 1971.Google Scholar

12 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports, 1996, p. 226 (July 8), 35 International Legal Materials, p. 809, para. 85.

13 Additional Protocol I, op. cit. (note 10), Art. 36: “In the study, development, acquisition or adoption of new weapons, means or methods of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.” For the United States, the weapon review is required by Department of Defense Instruction 5000.2, Operation of the Defense Acquisition System, 23 October 2000, para. 4.7.3.1.4. It provides, in relevant part, that “DoD acquisition and procurement of weapons and weapon systems shall be consistent with all applicable domestic law and all applicable treaties, customary international law, and the law of armed conflict (also known as the laws and customs of war)… Additionally, legal reviews of new, advanced or emerging technologies that may lead to development of weapons or weapon systems are encouraged.”

14 Geneva Convention for the Ametioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, Art. 2, 6 U.S.T. 3114, 75 U.N. T.S. 31 (hereinafter GC I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949, Art. 2, 6 U.S.T. 3217, 75 U.N. T.S. 85 (hereinafter GC II); Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, Art. 2, 6 U.S.T. 3316, 75 U.N. T.S. 135 (hereinafter GC III); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, Art. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287 (hereinafter GC IV) (emphasis added). The Conventions are reprinted in Roberts and Guelff, op. cit. (note 10), at 195, 221, 243 and 249 respectively.

15 Additional Protocol I, op. cit. (note 10), Art. 1.

16 Additional Protocol II to the Geneva Conventions of August 12,1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, 16 International Legal Materials, p. 1442 (1977), reprinted in Roberts and Guelff, op. cit. (note 10), p. 481.

17 Additional Protocol I deals with conflict between States, whereas Additional Protocol II is concerned with conflict between a State and a rebel group (or groups).

18 Non-international armed conflict occurs solely within the confines of a single State.

19 Hague Convention III relative to the Opening of Hostilities, 18 October 1907, Art. 1, I Bevans 619, 2 American Journal of International Law, Vol. 2 (Supp.), 1908, p. 85, reprinted in Dietrich Schindler and Jiri Toman, The Law of Armed Conflict, M. Nijhoff, Dordrecht, 1988, p. 57. According to the Commentary on the 1949 Geneva Conventions, “[t]here is no longer any need for a formal declaration or war, or for recognition of the state of war, as preliminaries to the application of the Convention. The Convention becomes applicable as from the actual opening of hostilities.” Pictet, Jean (ed.), Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32Google Scholar (hereinafter GC I Commentary).

20 GC I Commentary, op. cit. (note 19), pp. 32–33Google Scholar (emphasis added).

21 Sandoz, Yves, Swinarski, Christophe and Zimmerman, Bruno (eds), Commentary on tne Additionat Protocols of 8 june 1977 to tne Geneva Conventions of 12 August 3949, ICRC, Geneva, 1987Google Scholar, para. 62 (emphasis added) (hereinafter Additional Protocols: Commentary). The Commentary on Additional Protocol II refers back to the commentary on common Article 3 of the 1949 Conventions and to that on Additional Protocol I. Ibid., para. 4448, fn 2.

22 Additional Protocols: Commentary, op. cit. (note 21), para. 4341 (emphasis added).

23 See, for example, discussion in Ingrid Detter Lupis, De, The Law of War, 2nd ed., Cambridge University Press, Cambridge, 2000, pp. 20–21Google Scholar; Greenwood, Christopher, “Historical Develop-ment and Legal Basis”, in Fleck, Dieter (ed.), The Handbook of Humanitarian Law in Armed Conflict, Oxford University Press, Oxford, 1995, p. 42.Google Scholar

24 For instance, the Preamble to Additional Protocol I notes that “it [is] necessary… to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application…”. Additional Protocol I, op. cit. (note 10).

25 The designation “Geneva Law” refers to that portion of the law of armed conflict addressing protected categories of persons: civilians, prisoners of war, the sick or shipwrecked, and medical personnel. It is distinguished from “Hague Law”, which governs methods and means of combat, occupation, and neutrality. For a discussion of the international instruments which fall into each body of law, and of those which display elements of both, see DeMulinen, Frederic, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, pp. 3–4.Google Scholar

26 On the topic of attribution of an act to a State, see the Draft Articles on Responsibility of States for internationally wrongful acts, adopted by the International Law Commission at its fifty-third session (2001), Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp. IV.E.i.

27 This possibility was described in President's Commission on Critical Infrastructure Protection, Critical Foundations: Protecting America's Infrastructures, October 1997, atA–46.

28 Although not party to Protocol I, tne United States considers many of its provisions to be declaratory of customary international law. For a non-official, but generally considered authoritative, delineation of those viewed as declaratory, see Matheson, Michael J., “Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions”, American University Journal of International Law and Policy, Vol. 2, 1987, p. 419.Google Scholar See also International & Operational Law Division, Office of the Judge Advocate General, Department of the Air Force, Operations Law Deployment Deskbook, tab 12, no date, and comments by the then State Department Legal Advisor Soafer, Abraham D. in “Agora: The US Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims”, American Journal of International Law, Vol. 82, 1988, p. 784.Google Scholar

29 Additional Protocol I, op. cit. (note 10), Art. 48. Tne centrality of the principle to humanitarian law is noted in the ICRC Commentary thereon:

“The basic rule of protection and distinction is confirmed in this article. It is the foundation on which the codification of the laws and customs of war rests: the civilian population and civilian objects must be respected and protected in armed conflict, and for this purpose they must be distin-guished from combatants and military objectives. The entire system established in The Hague in 1899 and 1907 and in Geneva from 1864 to 1977 is founded on this rule of customary law. It was already implicitly recognized in the St. Petersburg Declaration of 1868 renouncing the use of certain projectiles, which had stated that ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’. Admittedly this was concerned with preventing superfluous injury or unnecessary suffering to combatants by prohibiting the use of all explosive projectiles under 400 grammes in weight, and was not aimed at specifically protecting the civilian population. However, in this instrument the immunity of the population was confirmed indirectly… In the Hague Conventions of 1899 and 1907, like the Geneva Conventions of 1929 and 1949, the rule of protection is deemed to be generally accepted as a rule of law, though at that time it was not considered necessary to formulate it word for word in the texts themselves. The rule is included in this Protocol to verify the distinction required and the limitation of attacks on military objectives.”

Additional Protocols: Commentary, op. cit. (note 21), paras 1863–64.Google Scholar

30 Additional Protocol I, op. cit. (note 10), Art. 51(2).

31 Ibid. Art. 52(1).

32 Ibid., Art. 51(4).

33 Ibid., Art. 52(2).

34 Ibid., Arts 51(1) and 51(2)(emphasis added).

35 Additional Protocols: Commentary, op. cit. (note 21), para. 1875 (emphasis added).

36 It is reasonable to include human suffering in the connotation, since the Protocol prohifaits causing terror, which is also a psychological condition. Additional Protocol I, op. cit. (note 10), Art. 51(2).

37 Ibid., Arts 5i(5)(b); 57(2)(a)(iii); 57(2)(b).

38 Ibid., Arts 35(3) and 55(1).

39 Ibid., Art. 56(1).

40 Additional Protocols: Commentary, op. cit. (note 21), para. 1881.

41 But see Haslam, , op. cit. (note 9), p. 173.Google Scholar

42 Indeed, the United States has even developed doctrine for the conduct of psychological operations. Joint Chiefs of Staff, Joint Doctrine for Psychological Operations, Joint Publication 3–53, 10 July 1996. Actions intended to terrorize the civilian population are prohibited by Additional Protocol I, op. cit. (note 10), Art. 51(2).

43 Additional Protocol I, op. cit. (note 10), Art. 57(2)(a)(i). The commentary on this provision further explains the obligation.

“Admittedly, those who plan or decide upon such an attack will base their decision on information given them, and they cannot be expected to have personal knowledge of the objective to be attacked and of its exact nature. However, this does not detract from their responsibility, and in case of doubt, even if there is only slight doubt, they must call for additional information and if need be give orders for further reconnaissance to those of their subordinates and those responsible for supportive weapons (particularly artillery and air force) whose business this is, and who are answerable to them. In the case of long-distance attacks, information will be obtained in particular from aerial reconnaissance and from intelligence units, which will of course attempt to gather information about enemy military objec-tives by various means. The evaluation of the information obtained must include a serious check of its accuracy, particularly as there is nothing to prevent the enemy from setting up fake military objectives or camouflaging the true ones. In fact it is clear that no responsible military commander would wish to attack objectives which were of no military interest. In this respect humanitarian interests and military interests coincide.”

Additional Protocols: Commentary, op. cit. (note 21), para. 2195.

44 Additional Protocol I, op. cit. (note 10), Art.43(i)–(2).

45 lbid., Art. 52(2).

46 Indeed, the Commentary states that: “The text of this paragraph certainly constitutes a valuable guide, but it will not always be easy to interpret, particularly for those who have to decide about an attack and on the means and methods to be used”. Additional Protocols: Commentary, op. cit. (note 21), para. 2016.

47 Ibid., paras 2020–23.

48 Ibid., para. 2024.

49 US Navy/Marine Corps/Coast Guard, The Commander's Handbook on tne Law of Naval Operations (NWP 1–14M, MCWP 5–2.1, COMDTPUB P5800.7), para 8.1.1 (1995), reprinted as an annotated version in US Naval War College's International Law Studies series, Vol. 73 (hereinafter Handbook). This assertion is labelled a “statement of customary international law”. The Handbook cites General Counsel, Department of Defense, Letter of 22 September 1972, reprinted in American Journal of International Law, Vol. 67, 1973, p. 123, as the basis for this characterization.

50 Bankovic & Others v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, lceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom, ECHR, App. No. 52207/99 (2001). In its decision of 12 December 2001, the Court found the application inadmissible.

51 Additional Protocol I, op. cit. (note 10), Art. 50(1).

52 Ibid., Art. 52(1).

53 Ibid., Art. 51(2) and 52. The Statute for the International Criminal Court also prohibits the direct targeting of civilians or civilian objects. Rome Statute for the International Criminal Court, Art. 8(2)(b)(i) and (ii), UN Doc. A/Conf. 183/9, July 17, 1998, at Annex II (hereinafter Rome Statute), reprinted in International Legal Materials, Vol. 37, p. 999 (1998) and Bassiouni, M. Cherif, The Statute of the International Criminal Court: A Documentary History, Transnational Publishers, New York, 1999, p. 39.Google Scholar

54 Ibid., Arts 50(1)(for civilians) and 52(3)(for civilian objects).

55 Ibid., Art. 51(3); Additional Protocols: Commentary, op. cit. (note 21), para. 1944.

56 Letter from DAJA-IA to Counselor for Defense Research and Engineering (Economics), Embassy of the Federal Republic of Germany (22 January 1988), cited in Parks, W.H., “Air War and the Law of War”, Air Force Law Review, Vol. 32, 1992, p. 1.Google Scholar

57 GC III, op. cit. (note 14), Art. 4(4).

58 Ibid.

59 Additional Protocol I, op. cit. (note 10), Art. 56(1). This prohibition extends to attacks on other military objectives in their vicinity if the attack might cause such a release. There are exceptions to the general prohibition of the article.

“2. The special protection against attack provided by paragraph 1 shall cease:

(a) for a dam or a dyke only if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;

(b) for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;

(c) for other military objectives located at or in the vicinity of these works or installations only if they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.” Ibid., Art. 56(2).

60 Ibid., Art. 54(2). See also Rome Statute, op. cit. (note 53), Art. 8(2)(b)(xxv).

61 Additional Protocols: Commentary, op. cit. (note 21), para. 2110. However, the prohibition does not apply to objects used solely for the sustenance of enemy forces or “in direct support of military action”. Additional Protocol I, op. cit. (note 10), Art. 54(3). An example of the latter would be an agricultural area used for cover by military forces.

62 Ibid., Arts 35(3) and 55. See also Rome Statute, op. cit. (note 53), Art. 8(2)(b)(iv). On the issue of environmental damage during armed conflict, see Austin, Jay E. and Bruch, Carl E. (eds), The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives, Cambridge University Press, Cambridge, 2000CrossRefGoogle Scholar; Schmitt, Michael N., “Green War: An Assessment of the Environmental Law of International Armed Conflict”, Yale journal of International Law, Vol. 22, 1997, pp. 1–109Google Scholar; Grunawalt, Richard J., King, John E. and McCIains, Ronald S. (eds), Protection of the Environrnent during Armed Conflict and other Military Operations, US Naval War College International Law Studies, Vol. 69, 1996.Google Scholar

63 For example, military and civilian medical units and supplies are exempt from attack unless being used for military purposes. Additional Protocol I, op. cit. (note 10), Art. 12. There are specific criteria for the extension of protection to civilian facilities. Ibid., Art. 12(2). See also Rome Statute, op. cit. (note 53), Art. 8(2)(b)(ix) and (xxv). Medical transport enjoys similar protection. Additional Protocol I, op. cit., Arts 21–31. The extent of the protection varies, depending on the category of transportation and its location. Other objects enjoying protection include cultural objects, places of worship and civil defence shelters, facilities and material. Ibid., Arts 53 and 62(3). In addition, humanitarian relief activities must not be interfered with. Ibid., Art. 70. Special provisions as to when such operations are entitled to the protection apply. Rome Statute, op. cit. (note 53), Art. 8(2)(b)(iii). By these prohibitions, for example, a computer network attack to alter blood type information in a hospital's data bank, deny power to a bomb shelter or œmisroute humanitarian relief supplies would all be unlawful. Of course, misuse of protected items or locations for military purposes renders them valid military objectives that may be attacked.

64 Reprisals are otherwise unlawful actions taken during armed conflict in response to an adversary's own unlawful conduct. They must be designed solely to cause the adversary to act lawfully, be preceded by a warning (if feas-ible), be proportionate to the adversary's violation, and cease as soon as the other side complies with the legal limitations on its conduct. The right to conduct reprisals has been severely restricted in treaty law, much of which expresses customary law. There are specific prohibitions on reprisals conducted against civilians; prisoners of war; the wounded, sick and shipwrecked; medical and religious personnel and their equipment; protected buildings, equipment and vessels; civilian objects; cultural objects; objects indis-pensable for the survival of the civilian population; works containing dangerous forces; and the environment. GC I, op. cit. (note 14), Art. 46; GC II, op. cit. (note 14), Art. 47; GC III, op. cit. (note 14), Art. 13; GC IV, op. cit. (note 14), Art. 33; Additional Protocol I, op. cit. (note 10), Arts 20, 51–56. In fairness, it should be acknowledged that certain countries argue that the Additional Protocol I restrictions on reprisals fail to reflect customary law. The United States, while accepting that most reprisals against civilians would be inappropriate (and illegitimate), asserts that the absolute prohibition thereon “removes a significant deterrent that presently protects civilians and other war victims on all sides of the conflict”. Soafer, , op. cit. (note 28), p. 470.Google Scholar For the official US position on reprisals against civilians, see Handbook, op. cit. (note 49), paras 6.2.3 and 6.2.3.1–3. The United Kingdom issued a reser-vation on precisely the same point when it became party to the Protocol. Reprinted on the International Committee of the Red Cross Treaty Database website, <http://www.icrc. org/ihl>. For these and other countries that have adopted this position, reprisatory computer network attacks are issues of policy, not law.

65 For a comprehensive review of the principle, see Rosenblad, Esbjôrn, International Humanitarian Law of Armed Conflict: Some Aspects of the Principle of Distinction and Related Problems, Henry Dunant Institute, Geneva, 1979.Google Scholar

66 This typology is adopted from Christopher , Greenwood, “The Law of Wea-ponry at the Start of the New Millennium”, in Schmitt, Michael N. and Green, Leslie C. (eds), The Law of Armed Conflict: Into the Next Millenium, Naval War College, Newport, Rl, 1998, p. 185Google Scholar; also published in US Naval War College International Law Studies, Vol. 71, 1998. By contrast, the US Air Force employs the categories of military necessity, humanity and chivalry, with proportionality folded into necessity, whereas the US Navy uses necessity, humanity and chivalry. Compare Department of the Air Force, International Law: The Conduct of Armed Conflict and Air Operations, AF Pamphlet 110–31, 1976, at 1–5 — 1–6 with Handbook, op. cit. (note 49), para. 5–1.

67 Additional Protocols: A Commentary, op. cit. (note 21), para. 1957.

68 On the attacks, see US Department of Defense, “Conduct of the Persian Gulf War”, Title V Report to Congress, 1992, p. 63, reprinted in 31 International Legal Materials, 1992, p. 612.

69 An expanded discussion is in Schmitt, Michael N., “Bellum Americanum: The US View of Twenty-First Century War and its Possible Implications for the Law of Armed Conflict”, Michigan journal of International Law, Vol. 19, 1998, p. 1051Google Scholar, pp. 1080–81.

70 Additional Protocol I, op. cit. (note 10), Arts 51(5)(a) and 57(2)(a)(iii) and (b). On pro-portionality, see Fenrick, William J., “The Rule of Proportionality and Protocol Additional I in Conventional Warfare”, Military Law Review, Vol. 98, 1982, p. 91Google Scholar; Gardam, Judith G., “Proportionality and Force in International Law”, American Journal of International Law, Vol. 87, 1993, p. 391.CrossRefGoogle Scholar

71 Additional Protocols: A Commentary, op. cit. (note 21), para. 2209.

72 A number of understandings/declarations/reservations have been issued on this point by parties to the Protocol. For instance, the United Kingdom made the following reservation when ratifying Additional Protocol I in 1998: “In the view of the United Kingdom, the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack con-sidered as a whole and not only from isolated or particular parts of the attack”. ICRC web-site, op. cit. (note 64).

73 For instance, how should civilian pas-senger lives be weighed against military air-craft in a computer network attack on an air traffic control system? How much human suf-fering is acceptable when shutting down an electrical grid that serves both military and civilian purposes? Can computer network attacks be conducted against telecommunications if they result in degrading emergency response services for the civilian population?

74 An additional problem is that the valuation process itself is complex. For instance, culture may determine the value placed on an item or the value of an item may shift over time. The issue of valuation paradigms is explored, in the context of environmental damage during armed conflict, more fully in Schmitt, Michael N., “War and the Environment: Fault Lines in the Prescriptive Landscape”, Archiv des Vôlkerrechts, Vol. 37, 1999, p. 25.Google Scholar

75 Additional Protocols: Commentary, op. cit. (note 21), para. 1978.

76 “NATO Denies Targeting Water Supplies”, BBC World Online Network, 24 May 1999, <http://www.news.bbc.co.uk/hi/english/world/europe/newsid_351000/351780.stm>.

77 See generally Additional Protocol I, op. cit. (note 10), Art. 57.

78 The US Joint Warfare Analysis Center, headquartered at Naval Surface warfare Center, Dahlgren, Va., is currently engaged in modelling foreign infrastructures and contin-gent outcomes.

79 Ibid., Art.57(2)(a).

80 Ibid., Art. 57(3).

81 Article 39 prohibits the use of the ene-my's military emblems, insignia or uniforms. This prohibition, which the United States disagrees with except when it occurs during the actual engagement (see Handbook, op. cit. [note 49], para 12.1.1, fn 2), does not extend to the use of codes, passwords and the like. Bothe, Micheal, Partsch, Karl J. and Solf, Waldermar A., New Rules for Victims of Armed Conflicts, M. Nijhoff, The Hague, 1982.Google Scholar However, Article 38 prohibits the misuse of protective signals.

82 Additional Protocol I, op. cit. (note 10), Art. 37. See also Rome Statute, op. cit. (note 53), Art. 8(2)(b)(vii) and (xi). Convention (IV) respecting the Laws and Customs of War on Land, October 18,1907, annexed Regulations, Art. 23(b)7, 36 Stat. 2277, 205 Consolidated Treaty Series 277, reprinted in Roberts and Guelff, op. cit. (note 10), p. 73, prohibits trea-cherous killing.

83 Additional Protocol I, op. cit. (note 10), Annex, Art. 11.

84 For a description of hesitancy to use CNA during Operation “Allied Force”, see Graham, Bradley, “Military Grappling with Rules for Cyber Warfare: Questions Prevented Use on Yugoslavia”, Washington Post, 8 November 1999Google Scholar, p. A.

85 See Schmitt, “Computer Network Attack”, op. cit. (note 7).

86 Consider the comment of Lieutenant General Michael Short, USAF, who commanded the air war during Operation “Altied Force”:

“I felt that on the first night, the power should have gone off, and major bridges around Belgrade should have gone into the Danube, and the water should be cut off so that the next morning the leading citizens of Belgrade would have got up and asked, ‘Why are we doing this?’ and asked Milosevic the same; question.”

Whitney, Craig R., “The Commander: Air Wars Won't Stay Risk-Free, General Says”, The New York Times, 18 June 1999, p. A1.Google Scholar

87 Additional Protocols: Commentary, op. cit. (note 21), para. 1871, notes that “it is the duty of Parties to the conflict to have the means available to respect the rules of the Protocol. In any case, it is reprehensible for a Party possessing such means not to use them, and thus consciously prevent itself from making the required distinction.”

88 A typical Information Operations cell is illustrated in JP 3–13, op. cit. (note 2), at figure IV-4 and accompanying text. It includes an 10 officer from J-3; representatives from J2, 4, 5, 6, 7, supporting combatant commands, and service and functional components; a judge advocate; and public affairs, counterintelli-gence, civil affairs, targeting, special operations, special technical operations, electronic warfare, psychological operations, military deception and operations security experts.