Case Western Reserve Journal of International Law Volume 30 Issue 2 Article 7 1998 Considering Our Position: Viewing Information Warfare as a Use of Force Prohibited by Article 2(4) of the U.N. Charter Todd A. Morth Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Todd A. Morth, Considering Our Position: Viewing Information Warfare as a Use of Force Prohibited by Article 2(4) of the U.N. Charter, 30 Case W. Res. J. Int'l L. 567 (1998) Available at: https://scholarlycommons.law.case.edu/jil/vol30/iss2/7 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. CONSIDERING OUR POSITION: VIEWING INFORMATION WARFARE AS A USE OF FORCE PROHIBITED BY ARTICLE 2(4) OF THE U.N. CHARTER Todd A. Morth" This is Radio Clash Stealing all transmissions Beaming from the mountaintop Using aural ammunition With extreme prejudice On a terminatormission This is Radio Clash Consider your position.' I. INTRODUCTION INFORMATION WARFARE IS AN EMERGING THREAT TECHNOLOGY HAS RAPIDLY ADVANCED from the radios that the popular singing group The Clash sang about in 1981, as the world's most advanced countries enter into what has been termed the "information age."2 This new epoch is defimed by the use of computers, particularly computers grouped into the "network form 3 - computers used to facili- tate human interactions.4 These information networks have led to numer- ous advances in the quality of life by improving the provision of vital services such as power, medicine, and public safety 5 However, dependence on information networks also places those J.D. Candidate, Case Western Reserve University School of Law, 1998. THE CLASH, Radio Clash, on THIs IS RADIO CLASH, (Epic Records, 1981). 2 See ALviN ToFRLER & HEmI TOF.ER, WAR AND ANT-WAR 19 (1993) (discuss- ing what they view as the "Third Wave" of civilization). 3 See JoHN ARQUILLA & DAVID RONFELDT, THE ADVENT OF NET WAR 33-35 (1996) (explaining that the "network form" involves large-scale use of interconnected groups of information storage and retrieval technologies such as computers). 4 See i. See Security in Cyberspace: Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Gov't. Affairs, 104th Cong. 150, 155 (1996) [hereinafter Security in Cyberspace] (testimony of Jamie S. Gorelick, Deputy Attorney General) (describing how technology generally, and information networks specifically, play critical roles in the functioning and development of these important areas). 567 CASE W. RES. J. INTL L. [Vol. 30:567 countries reliant upon them in a position of vulnerability.' If vital infor- mation networks stopped functioning, an information age society would be paralyzed and could quickly collapse into chaos.7 Attacks on informa- tion networks, or information warfare (IW), could inflict damage rivalled only by other weapons of mass destruction such as nuclear or chemical weapons.' A concerted IW attack could devastate a modem society by crippling the information networks crucial to providing power, transporta- tion, national defense, and medical services.9 The destructive capability of IW presents a significant threat to the international community and creates a need for consideration of a mechanism to respond to 1W attacks. Information warfare is especially troublesome for the international community because relative to chemical, biological, or nuclear weapons, the technology required to attack information networks is simple to acquire.' Information networks can also be sabotaged via the manufac- 6 See David C. Gompert, Keeping Information Warfare in Perspective <http:ll www.rand.org/publicationsfRRR/RRR.fa195.cyber/perspective.htnl> (visited Mar. 5, 1997) (explaining that the U.S. dependency on information networks has grown much faster than our understanding of the vulnerabilities this dependence causes). 7 See WINN SCHWARTAU, INFORMATION WARFARE: CHAOS ON THE ELECTRONIC SUPERHIGHWAY 308-10 (1994) (describing how a concerted attack against critical finan- cial and communication networks could result in widespread panic and lead to a situation resembling anarchy). ' See Paul Mann, Cyber-Threat Expands With Unchecked Speed, AVIATION WK. & SPACE TECH., July 8, 1996, at 63, 64 (reporting that CIA Director, John Deutch, ranks threats of information warfare as "a close third behind the threats from weapons of mass destruction (WMD) and the proliferation and terrorist use of nuclear, biological, and chemical ...weapons). See also Walter Laqueur, Postmodern Terrorism, FOREIGN AFF., Sept.-Oct. 1996, at 9 (claiming information warfare will be more destructive than either chemical or biological weapons); Bruce Smith, An Eye for An Eye, A Byte for A Byte, 42 FED. LAW., Oct. 1995, 12, 12-13 (speculating that information warfare might be more effective than nuclear weaponry). But see Larry Seaquist, The Ten-Foot- Tall Electron: Finding Security in the Web, in THE INFORMATION REVOLUTION AND NATIONAL SEcuRrrY 68, 75 (Stuart J.D. Schwartzstein ed., 1996) (arguing that history proves that societies have the resiliency to survive any impacts that information warfare might cause and that comparisons between IW and nuclear and chemical warfare are unjustified). 9 See infra notes 152-54 and accompanying text. 10 See SCHWARTAU, supra note 7, at 308-10. All that would be needed to conduct extensive information warfare would be a bank of high-powered computers and modems and people with the requisite expertise to use them. See id. Moreover, with the end of the "Cold War," the United States and the international community have eased consid- erably their restrictions on the export of computers and other information technology. U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, INFORMATION SECURITY AND PRIVACY IN NETWORK ENVIRONMENTS, OTA-TCT-606, 154-55 (Sept. 1994). 19981 INFORMATION WARFARE AND ARTICLE 2(4) 569 ture of purposely defective equipment and, given the wide manufacturing base for computers, there exists significant opportunity for such sabotage to occur." The current state of international politics, with the demise of the Soviet Union as a superpower and the United Nations coalition victory in the 1991 Gulf War, has created a situation where non-conven- tional means, such as terrorism or information warfare, offer the best mechanism to attack the advanced "Western" countries." This makes non-conventional attack methods such as destroying information networks attractive to those who have interests adverse to those of the United States and its allies.' At least twelve countries have started to develop the capability to conduct attacks on information networks. Twenty-six other countries might be developing this capability. 4 The United States and several European countries have recognized the potential threat posed by IW and are developing their own 1W capabilities in answer to the threat. 5 These countries are also attempting to establish national legal mechanisms to respond to IW. 6 However, the unilateral attempts by these countries to control IW have caused them to overlook critical aspects of it and other mechanisms to control this kind of warfare.17 The U.N. system of dispute resolution by the Security Council and the International Court of Justice offers a mechanism to control 1W."g An " See SCHWARTAU, supra note 7, at 165 (1994) (noting that computer chips for U.S. and Japanese computers are manufactured throughout the Pacific Rim). " See International Terrorism: Hearing Before the Senate Select Comm. on Intelligence, 104th Cong. (1996) [hereinafter International Terrorism] (testimony of James Schlesinger, Former Secretary of Defense, arguing that the break-up of the Soviet Union and the Warsaw Pact caused the dissolution of the only military force capable of challenging the advanced "Western" countries on a global scale. The Gulf War indicated the superiority of U.S. and European military forces over regional powers such as Iraq). 3 See id.; see also R. James Woolsey, Resilience and Vulnerability in the Informa- tion Age, in TmE INFORMATION REVOLUTION AND NATIONAL SEcURIrrY 79, 82-83 (Stuart 3. D. Schwartzstein ed., 1996) (describing incentives rogue states and terrorist groups have to engage in information warfare). 14 See John Donnelly, Intel Report: Dirty Dozen Nations are Industrial Spies, DEFENSE WK., July 1, 1996, available in 1996 WL 7978531. " See J. Knowles, /W Battlelab to Go Operational This Month, J. OF ELEC. DEF., June 1, 1997 (describing how the Air Force is now conducting intensive studies of both offensive and defensive information warfare). 26 See infra notes 55-64 and accompanying text. , See infra notes 115-27 and accompany text. 28 See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 58-59 (4th ed. 1990) (explaining capacities necessary for the right to bring an international claim). 570 CASE W. RES. J. INT'L L. [Vol. 30:567 exploration of this mechanism will allow the international community to plan more effectively its response to IW. The U.N. dispute resolution mechanism also offers the advantage of already being in place, while other mechanisms have not yet been formulated, much less implemented. This Note considers whether the international community should view IW as a prohibited use of force under Article 2(4) of the United Nations Charter. Article 2(4) of the Charter proscribes the use of force to resolve international disputes. 9 Part I focuses on creating a clear definition of IW. This process involves defining IW and then contrasting it as defined with similar, yet different activities. Part II explains why the transnational nature of IW requires the international community to recognize and respond to AW. Part I examines whether Article 2(4) of the U.N. Charter is an appropriate mechanism to respond to IW.