Treatise on International Criminal Law - Coursework Example

Introduction In both civilian and military applications, the term computer network operation has been extensively used. In civilian setting, the term simply implies the availability of information or the exchange of such information via computer networks (Harrison, 2012, p.199). In the military set up, the use of the term is slightly different. In the civilian setting, one must acknowledge that information is power and as such a person who is a custodian of information has a high potential in undertaking many tasks. In warfare, the same is true. Armies with the large information over their enemy are most likely to win battles. It is for these two reasons that the definition of computer network operations has two meanings. In the civilian application, the term refers to all actions that seek to provide computer networks with optimum capacity in order to improve the delivery of both quality and quantity information to users. In military use, the term refers to actions that are intended to gain information advantage over an enemy, and deny the enemy under consideration some important information (Larson, 2009). In international law, this is an act of war depending on the scale or purpose of the attacker. It is referred to as cyber wars or armed conflicts according to international conventions. This paper examines three notions about international armed cyber conflicts. That is the aspect of cyber blockade, geographical limitations in cyber warfare and non international armed cyber conflicts. For each notion, the paper gives an analysis and in the end, the practicality of the notion or the legal perspectives presented in each. Discussion Cyber blockade Russell (2014, p. 52), gives a history of traditional blockades in different domains of warfare. It states that in ancient warfare, the establishment of a blockade on access routes was to cut out the essential supplies to enemies with an aim of weakening them for an eventual defeat. The physical blockade also implied that the enemy would not receive any backup from allies and as such remained vulnerable to the army that was implementing the blockade. The blockade tactic also meant that the army remained in control of key resources that the enemy needed for its survival or operations. Key examples of blockades that it gives include, land siege, sea blockade and airspace blockade (Holwitt, 2009p. 94). The study further gives a set of commonalities between these traditional blockades and the concept of cyber blockade. The commonalities described here are related to the actors involved, the existence of an international conflict and capabilities that are disabled through the blockade. From a review of all these preceding aspect of a blockade, an acceptable definition of a cyber blockade is given in the context of armed conflicts. It is described as a set of actions that will deter the transmission of information within and without the territorial borders of a state in an armed conflict. In the case of extant conflicts, such actions are not considered by international law as cases of armed conflicts or acts of war. Instead, they are considered as punitive measures that are meant to influence political or economic decisions within countries. In order to qualify a cyber blockade as an armed attack, there are certain irreducible minimums that must be attained by the blockade. The nation under attack must also be in a position to classify the attack on its territory as an act of war or armed conflict (Carr, 2012). In this study, several criteria have been used to classify the cyber attack as an armed conflict. These are the duration, intensity and scope of the attack. In a case where the attacks are sustained over a long period, and the intensity and scope are crippling, then the attack can be categorized as an armed conflict (International Conference on Information Warfare and Security, & Armistead, (2010, p. 153). Another approach of determining whether a blockade is an act of an armed conflict is through assessing the overall effects of the actions (Owens, Dam & Lin, 2009, p. 254). If the overall effect of the action is severe, and it leads to the loss of life, threatening the collapse of a social system, then this is an armed conflict (Carr, 2012, p. 59). In Lovelace (2014, p. 86), the concept of cyber blockade is described as that which aims at gaining superiority of information over the enemy in a case of an armed international conflict. The study further explains that this can be achieved through the destruction of the communications infrastructure or remote attacks through computer network operations. To put cyber warfare and attacks into context, a look at the cyberspace in relation to international law can provide useful insights. According to Schmitt (2013, p. 36), there is no single state that can control and claim ownership of the world's cyberspace. However, states have the right to control the cyber infrastructure that is within the jurisdiction of their territory (Gehmann, Reiche & Stern, 2014, p. 389). This implies that even the activities associated with this infrastructure are subject of sovereign control by the same state. Nasu & Mclaughlin (2014, p. 83) states that in a case where a physical network nodes transit through a territory, control and responsibility of care belong to the same territory. Due to this any interference on this infrastructure caused by another state is an aggression against the host nation. This perspective gives a practical sense since such states are protected by the international law of neutrality in armed conflicts. Ordinarily a blockade can be implemented in several ways. These include the use of denial of service; submarine cable disconnection and application layer attacks a perfect case in point is the Rusian attack on Georgia in 2008 (Rid 2013, p. 8). In the case where the denial of service is originating from many sources, this attack is considered as a distributional denial of service attack (Whitman & Mattord, 2009, p. 66). All these forms of aggression, when underpinned by an existing armed conflict, are considered as cyber weapons under the existing international statutes (Roscini, 2014, p. 72). The common understanding here is that the cyber blockade perpetrated on another state is an act of war depending on the magnitude and purpose (Schmitt, 2013, p. 76). Since there is no single nation that can control the entire cyberspace infrastructure, and that the physical nodes of this infrastructure can be located anywhere, the concept of neutral states comes to play. The Fifth Hague Convention explains the law of neutrality. Under this law, any malicious packet of data that are transmitted through a neutral state does not violate the sovereignty of the state under consideration (Nasu & Mclaughlin. 2014, p. 84). The legal question that arises in this notion is how to determine the neutrality of a state. A state might appear not to take sides but their intent is to support either side of the conflict. Such states can either increase or filter the offensive packets of data. Therefore, the applicability of the law of neutrality is faulted by this viewpoint. A practical assessment of this scenario can help in understanding whether this action is in breach of international law. According to Rosenzweig (2009, p.12), the interconnected nature of the cyberspace is one such practicality issues that dictate the difficulty in comprehending what is happening and where it is. As such it would be difficult to pinpoint exactly the origin of the blockade and the intention. This study also suggests that due to the speed and scale of the cyberspace, it is essential to develop new doctrines and laws that will accommodate the various aspects of the cyberspace. These doctrines can only be developed in unions of like-minded countries to forge a common ground of operations in cyberspace (Shackelford, 2014, p. 107). The inability to point out exactly the origin and purpose of such a blockade also waters down the chances of the blockade making legal or practical sense in international law. In many cases on if the attackers claim responsibility will it be well known that the attack originated from a given state with intentions clearly listed. This notion makes practical sense and can be used to develop substantive literature in the subject of cyberspace wars and armed conflicts. From the preceding discussion, it is possible to make a conclusion that a blockade implemented by cutting out submarine cables has repercussion on both the neutral parties and the conflicting parties alike. This happens due to the interconnection nature of the computer systems that relies on this infrastructure. It is possible that each of the conflicting partners both depend on the same submarine cable. For this reason, the practicality of cyber blockades is limited to attacks conducted in the cyberspace of the conflicting nations. Any other physical measure taken to damage the infrastructure could have consequences that might not be mitigated at a time of conflict. Geographical limitations In an armed conflict of international magnitude, there are limitations of geographical location of conducting the hostilities. To understand the concept of geographical limitations, it is essential to make reference to the law of armed conflict. In this law, the conflicting parties are required to stick to the geographical locations which they control. These include land, sea and airspace of the conflicting parties. Any hostility that is perpetrated by both parties should be focused on this geographical area and not to interfere with the other nations that are not party to the conflict (Schmitt, 2013, p. 78). Despite the difference in types of cyber attacks in armed conflict, the strictness on the geographical location, as set in the Geneva conventions, is a major requirement. This will ensure that the two parties in a conflict do not draw any neutral parties in to an armed conflict (Gill, 2015, p. 278). This requirement is also the basis of international humanitarian law that seeks to limit conflicts from escalating and causing too much human suffering. The limitation of the geographical area in armed cyber conflicts raises legal and practical issues that need review under international law. In Weller (2013, p. 1124), the issue that is raised by the geographical limitation is that which stems out of standalone attackers. In this case, if an attacker is located in another sovereign geographical location, the method that the state under attack will use in self-defense is quiet challenging. In international law, the state from which the attack is originating has the moral responsibility of terminating the attack and instituting legal action on the attacker. This will show a spirit of corporation between states and indicate that the same state has no interest in the aggression. In a case where this is not done, the same state is seen as abetting the crime, and the attacked state can issue a non-consensual attack in self-defense (Schmitt, 2013). The law of neutrality that is contained in the law of armed conflict is also another important aspect that could provide a level of difficulty in practicality of this notion. The nature of the cyberspace is the driving rationale behind the formulation of this law. It must be noted that the cyberspace consists of a wide range of players and interconnected systems that operate together on a common infrastructure base. Due to this, data traffic destined to different countries pass through physical nodes located in other countries. In a case of an armed cyber conflict, these packets could pass through neutral states in transit to the destination which is the other warring party. The law of neutrality protects the neutral state from any wrongdoing and absolves it from the conflict. The parties at war are also required not to draw the neutral nation into the war by the fact that the packets transited through the country (Clapham & Gaeta, 2013). The main intention of the law of neutrality is to further the interest of neutral states that are not at war with any of the conflicting parties. Even though two states might be at war with each other, the other nations might have no interest in the war. As such their national interests must be preserved through protecting the neutral state from war and its effects (Masson-Matthee, Toebes & Mcdonald 2013, p. 143). Some schools of thought have emerged that criticizes the geographical limitations on the spread of an armed conflict. These critics believe that regardless of the geographical limitations, the number of persons that are affected as a result of this conflict should be the central concern of the humanitarian law. Levie (1987, p. 95) explains that the events of the second protocol of the Geneva Convention identified the need of making reference to victims of an armed conflict, as opposed to the state affected. This argument is developed from the fact that in the case of an armed cyber hostility, the ripple effect is will cause a lot of damages both to the individual in the conflict zone and other persons elsewhere. As such the provisions in statutes that try to limit the warfare to geographical locations or zones of conflict are impractical. Despite the recommendation for containment international conflicts within geographical boundaries, such has not been possible in cyber warfare. The most notable impact of this containment has been discussed in the preceding section. The challenges that have caused the inability to contain the cyberspace war stem out of the unique nature of this form of armed conflict (Janczewski & Colarik, 2008 p.243). the use of cloud computing and the ubiquitous nature of the internet are the possible challenges that blurs the line of geographical boundaries (Andress & Winterfeld, 2014). As such the practicality of limiting international cyber warfare remains a big challenge even in legal terms. To put this notion into context, such armed conflicts can be launched from any location that has internet connectivity (Morozov, 2008). This is a classic example of the case of cyber wars between Russia and Georgia in 2008. The writer explains that it was possible to launch a standalone attack on the websites belonging to Georgia in 2008 since there was an internet connection available. This shows that geographical boundaries are not a major factor and that these attacks have nothing to do with the limitations of geographical location of both the attack and the attacker. In this perspective, this notion makes no legal sense in that the persons involved in this systematic attack are not interested in the conflict itself. The standalone attacker's intention is to try out if it is possible to launch an attack remotely. After the stop of the mayhem, such attacks could still continue from these criminal elements (Kaur & Tao, 2014, p. 85). The main issue here is the practicality of international law in dealing with this gap exposed for criminal elements to exploit. Non-international cyber armed conflict Non- international cyber armed conflicts are conflicts that do not involve nations but rather an organized rebel group and a state or between two rebel groups. According to Schmitt (2012), there are a number of conditions or threshold that must be met for the consideration of the situation as an armed cyber conflict (Ambos 2013, p. 124). This study explains that sporadic aggression or violence is not within the category of armed conflicts. Moreover, such rebellion must take a specific period in order to be considered as an armed cyber conflict. Other criteria that are discussed here include the level of organization of the group conducting the cyber operation and the level of violence that is perpetrated by the group. Single individual riots or cyber operations are not recognized by international laws as armed cyber conflicts. For non-international armed cyber attack, political or geographical boundaries play no role. The principles of international law dictates that any hostility that is part of this law, should be carried out from a remote location. That is a place that does not have any involvement in the conflict (Schmitt 2012, p. 86). This study also appreciates the fact that the international law of armed conflict does not explicitly identify non-international conflicts and cyber attacks as armed conflicts per se. In the second protocol of the Geneva Convention however; some threshold is given to govern the nature and classification of such conflicts as armed conflicts (Dorsey, Paulusesn, Mc Comark, Heinsch, Geib, and Gill, 2014, p. 50). From this preceding discussion, a non-international conflict can, therefore, be described as a cyber operation that is perpetrated by an organized rebel group, sustained over time with adverse consequences in the conflict zone. This definition or explanation takes into account the basic requirements of a protracted tussle, magnitude, and effect of the conflict. All these parameters are supposed to be higher than those that initiate international conflicts (Wilmshurst, 2012, p. 463). Due to this nature of non-international cyber armed conflicts, it is difficult to define and apply legal statutes to the same. In most cases, insurgencies are not organizes groups but occur sporadically. The ability to sustain such a task of continued cyber attack over time and the resources required to undertake this process are hard to come by for these groups. The standards set in the common article three of the second Geneva Convention are some of the difficulties that prohibit the recognition of these groups in law (Clapham, 2006). As such the practicality of this notion is surrounded with doubt. In legal terms, the recognition of this type of insurgency or belligerence is still a challenge. Apart from the high threshold set by different international convention, the states within which such insurgent groups operate regard them as criminal or terrorist elements. As such it is difficult to term them as organized belligerence groups that are recognized in law. Conclusion Computer network operations have both civilian and military use in the world today. In civilian use, the concept is quite useful in empowering individuals through availability of information. In military use, the concept leads to aggression or armed cyber conflicts between states or a state and belligerence groups. In international armed cyber conflicts, the conflicting states attack the cyber infrastructure of each other with the aim of denying service or destruction of the data contained in it. In international law and statutes set in the Geneva conventions, the threshold for declaring an international cyberspace war is not high. The requirements are that such attacks must be sustained over a specific period and the magnitude or extent of damage to reach a level that is not acceptable to the attacked country. The three notions discussed in these paper relating to cyber wars and interstate armed cyber conflicts poses different challenges of practicality and legal issues. In the case of a cyber blockade, the international laws provide for direct and practical ways of handling the situation. This includes using force or other methods to rectify the situation. In this concept, the law of neutrality applies to other states that are not party to the attack but are use by either party in launching the attacks. In the notion of geographical limitation and non-international cyber armed conflicts, there are significant flaws in practicality and legal implications of the notions. 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