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Revisiting Belligerent Reprisals in the Age of Cyber? Marquette Law Review Volume 102 Article 5 Issue 1 Fall 2018 Revisiting Belligerent Reprisals in the Age of Cyber? Follow this and additional works at: https://scholarship.law.marquette.edu/mulr Part of the Comparative and Foreign Law Commons, Computer Law Commons, Human Rights Law Commons, International Humanitarian Law Commons, International Law Commons, and the Science and Technology Law Commons Repository Citation Revisiting Belligerent Reprisals in the Age of Cyber?, 102 Marq. L. Rev. 81 (2018). Available at: https://scholarship.law.marquette.edu/mulr/vol102/iss1/5 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. REVISITING BELLIGERENT REPRISALS IN THE AGE OF CYBER? DAVID WALLACE,SHANE REEVES &TRENT POWELL* I. INTRODUCTION ............................................................................................ 81 II. THE HISTORY OF BELLIGERENT REPRISALS IN IHL ................................... 85 III. BELLIGERENT REPRISALS TODAY IN IHL ................................................. 91 IV. CYBER OPERATIONS AND BELLIGERENT REPRISALS: THE LEX LATA ....... 94 V. COUNTERMEASURES UNDER INTERNATIONAL LAW .................................. 96 VI. BELLIGERENT REPRISALS AND CYBER:ATHEORETICAL FRAMEWORK 104 VII. CONCLUSION.......................................................................................... 108 I. INTRODUCTION With respect to current and future warfare, it is virtually impossible to H[DJJHUDWHWKHVLJQLILFDQFHRILQIRUPDWLRQWHFKQRORJ\7RGD\¶VDUPHGIRUFHV use a host of weapons, munitions, and systems that function through the operation of highly sophisticated information systems.1 For instance, the command and control of operational forces are increasingly coordinated and directed through computer-based networks that allow for real-time sharing of information and common pictures of the battlespace.2 Moreover, logistics, at all levels of warfare, are entirely at the mercy of information systems. And, of * Colonel David Wallace is the Professor and Head, Department of Law, United States Military Academy at West Point, New York. In 2017, Colonel Wallace served as a Visiting Scholar at the NATO Cooperative Cyber Defence Centre of Excellence (CCDCOE) in Tallinn, Estonia. The author would like to thank the NATO CCDCOE Director, Merle Maigre, the Law Branch Chief, Lauri Aasmann, and all of the members of the Law Branch for their collegial assistance and support during the fellowship. Lieutenant Colonel Shane Reeves is the Professor and Deputy Head, Department of Law, United States Military Academy at West Point, New York. He is an Associate Professor of Law. Major Trent Powell is serving as an action officer in the Future Concepts Directorate at The Judge Advocate General's Legal Center & School. Major Powell previously served as an Assistant Professor of Law, Department of Law, United States Military Academy at West Point, New York. The opinions, conclusions, and recommendations in this article do not necessarily reflect the views of the Department of Defense, the United States Army, or the United States Military Academy. 1. COMM.ON OFFENSIVE INFO.WARFARE,NAT¶L RESEARCH COUNCIL OF THE NAT¶L ACADS., TECHNOLOGY,POLICY,LAW, AND ETHICS REGARDING U.S. ACQUISITION AND USE OF CYBERATTACK CAPABILITIES 9 (William A. Owens et al. eds., 2009). 2. Id. 82 MARQUETTE LAW REVIEW [102:81 course, in recent years the development of cutting edge, high-tech cyber weapons allow for an attack against an adversary in both virtual and real domains.3 :KLOHWKLV³1HZ$JHRI &\EHU´PD\VHHPWRUDLVHTXHVWLRQVDERXW the legal framework applicable to the conduct of such operations, the traditional normative legal structure for warfare, the jus ad bellum4 and the jus in bello,5 still regulate the actions of belligerents engaged in cyber hostilities. This article deals with legal issues in the cyber warfare context related to the jus in bello, which is also referred to as international humanitarian law (IHL). The international legal community acknowledges and widely accepts that IHL applies to cyber operations undertaken in the context of an armed conflict.6 The challenge, of course, is not that IHL applies, but rather how it specifically applies to cyber operations. Unquestionably, digital means and methods of warfare executed in both the virtual and real world pose novel issues.7 In this regard, it is necessary to consider and examine how pre-cyber IHL laws, as well as the values that formed the foundation for those laws,8 translate into regulation of armed conflicts in the New Age of Cyber. Although there are many issues and topics that are worthy of such a re-examination, few are as controversial as the notion of belligerent reprisals under IHL. As will be discussed in detail below, a belligerent reprisal under IHL is a method of warfare that is otherwise unlawful but, in exceptional cases, is lawful when used as an enforcement mechanism in response to unlawful enemy acts.9 As noted by Professor William Schabas, ³>U@HSULVDODPRXQWVWRDQDUJXPHQW that crimes are justifiable as a proportionate response to criminal acts committed by the other party. In a sense, it is the most ancient means of 3. Id. at 10. 4. Jus ad bellum addresses when a State may use force under international law. What are Jus ad bellum and Jus in bello? INT¶L COMM.RED CROSS, https://www.icrc.org/en/document/what-are-jus- ad-bellum-and-jus-bello-0 [https://perma.cc/7AP3-7D8M] (last visited Nov. 7, 2017). Some legal commentators have observed that the United Nations Charter creates a legal regime more accurately characterized as jus contra bellum because it is fundamentally devised to prevent the use of force. See ROBERT KOLB &RICHARD HYDE,AN INTRODUCTION TO THE INTERNATIONAL LAW OF ARMED CONFLICTS 13 (2008). 5. The jus in bello regulates the conduct of parties engaged in an armed conflict. See What are Jus ad bellum and Jus in bello?, supra note 4. 6. See TALLINN MANUAL 2.0 ON THE INTERNATIONAL LAW APPLICABLE TO CYBER OPERATIONS 3 (Michael N. Schmitt ed., 2017) [hereinafter TALLINN MANUAL 2.0]. 7. See, e.g., David Wallace & Shane R. Reeves, The Law of Armed Conflict’s “Wicked” Problem: Levée en Masse in Cyber Warfare, 89 INT¶L L. STUD. 646, 666±67 (2013) (discussing the difficulty of applying the traditional IHL interpretation of a levée en masse in the cyber domain). 8. HEATHER HARRISON DINNISS,CYBER WARFARE AND THE LAWS OF WAR 239±40 (James Crawford & John S. Bell eds., 2012). 9. 1 JEAN-MARIE HENCKAERTS &LOUISE DOSWALD-BECK,CUSTOMARY INTERNATIONAL HUMANITARIAN LAW:RULES 513 (2005). 2018] REVISITING BELLIGERENT REPRISALS IN THE AGE OF CYBER? 83 HQIRUFHPHQW RI WKH ODZ´10 8QGHU WKLV DVVHUWLRQ WKHQ D ³SURSRUWLRQDWH UHVSRQVH´E\DQDJJULHYHGSDUW\VHUYHVDVDjus in bello enforcement of the law. And, because the enforcement of international law and IHL specifically, is the obvious shortcoming with international law, belligerent reprisals may provide a timely mechanism to redress enemy violations of IHL during the armed conflict itself.11 The use of belligerent reprisal has evolved over time ³from a fundamental and nearly universally recognized aspect of the international law´ regulating warfare ³into a complex and [highly] contentious sanction.´12 Arguably, in modern IHL, reprisals have been largely²but not entirely²prohibited by customary and codified law. The 1977 Additional Protocols (AP) I13 is XQTXHVWLRQDEO\ WKH LQWHUQDWLRQDO FRPPXQLW\¶V VWURQJHVW DQG PRVW comprehensive condemnation of belligerent reprisals as a method of warfare. Commenting on the efforts that led to AP I, Konstantin Obradovic, who took part in the Diplomatic Conference of 1974±1977 as a member of the Yugoslav delegation, made the following observations about belligerent reprisals: With its well-nigh absolute prohibition of reprisals against all categories of protected persons who fall into enemy hands, Protocol I goes further down the trail blazed in 1949. The underlying considerations are both humanitarian and rational. The history of war²and the Second World War in particular² clearly shows that, apart from being barbarous, unfair and inequitable as they invariably victimize the innocent, reprisals achieve nothing. (YHQLIWKH\DUHµMXVWLILHG¶DVDUHVSRQVHWR enemy violation of the law, they never result in the triumph of the rule of law. Moreover, all the mass executions of the last world war, all the Oradour-sur-Glane of this world have not EHHQ HQRXJK WR GDPSHQ SHRSOH¶V GHWHUPLQDWLRQ WR UHVLVW Reprisals therefore appear pointless.14 10. GARY D. SOLIS, THE LAW OF ARMED CONFLICT:INTERNATIONAL HUMANITARIAN LAW IN WAR 693 (2d ed. 2016) (quoting WILLIAM A. SCHABAS,THE INTERNATIONAL CRIMINAL COURT:A COMMENTARY ON THE ROME STATUTE 496 (2010)). 11. A.P.V. ROGERS,LAW ON THE BATTLEFIELD 14 (2d ed. 2004). Importantly, reprisals are separate and distinct from acts of retaliation and revenge, which remain unlawful under IHL. GEOFFREY BEST,HUMANITY IN WARFARE 19 (1980). 12. Sean Watts, Reciprocity and the Law of War, 50 HARV.INT¶L L.J. 365, 382 (2009). 13. Protocols Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Jun. 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I]. 14. Konstantin Obradovic, The Prohibition of Reprisals in Protocol I: Greater Protection for War Victims, INT¶L REV.RED CROSS, Oct. 31, 1997, at 524,
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