Abstract
In this chapter it is argued that within the framework of the Law of Armed Conflict (LOAC), attack and kinetic operations can be used as equivalents where military operations that do not constitute attacks have a large overlap with non-kinetic operations. These topics present more than just a linguistic exercise because many (restrictive) rules in LOAC are constructed around the definition of ‘attack’, placing fewer restrictions on other military operations. Traditionally, the qualification of attack is determined by the (intended) physical consequences of a military operation. If it does not (intend to) result in physical consequences, it is not defined as attack. If this approach is applied to non-kinetic military capabilities, especially in cyberspace with its non-physical components, the question is raised whether the traditional physical consequences are still valid criteria for determining whether or not a military operation qualifies as attack.
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Notes
- 1.
As actually happened in January 2016 when a declassified video was released by the US DoD. See: CNN 2016.
- 2.
Capability is used in the sense of having the will, the knowledge and the means (capacity) to perform a certain action. Once a capability is actually used, it is referred to as an operation.
- 3.
LOAC is also known as Law of War, International Humanitarian Law (IHL) or ius in bello.
- 4.
Ducheine 2015, p. 208.
- 5.
Ducheine 2015, p. 210.
- 6.
Examples of military operations that are not attacks are jamming, psychological operations, (strategic) movements, deception (decoys) or intelligence operations. See for other examples Chap. 9 by Ducheine, Van Haaster and Van Harskamp in this volume.
- 7.
Ducheine and Pouw 2012, p. 33.
- 8.
The overall aim of this volume.
- 9.
DIME is the acronym for Diplomacy, Information, Military and Economy as sources of power of a state.
- 10.
Additional Protocol I, Article 49(1): “‘Attacks’ mean acts of violence against the adversary, whether in offence or in defence”.
- 11.
The Netherlands is one of these states, see for example Parliamentary Papers (Kamerstukken) II 2003–2004, 29 200 X, C, p. 3 “Within NATO, including the Netherlands, it is standing policy that also in operations to which the law of armed conflict formally is not applicable, the restrictions of this body of law (like the prohibition on attacks on the civilian population as such) will be observed” (translation: BvdB).
- 12.
Additional Protocol I, Article 49(1).
- 13.
Henckaerts and Doswald-Beck 2005, black letter rule 1 and 7.
- 14.
Additional Protocol I, Article 48.
- 15.
Hays Parks 1990, p. 114.
- 16.
The Collins English Dictionary 2007 defines attack as: to launch a physical assault (against): to begin hostilities.
- 17.
Sandoz et al. 1987, p. 603.
- 18.
Oeter 2013, p. 167.
- 19.
Bothe et al. 1982, p. 289.
- 20.
- 21.
Levie 1980, p. 61.
- 22.
Additional Protocol I, Article 50(5)(b), emphasis added.
- 23.
Schmitt 2013, p. 106. Although such an attack is forbidden in LOAC amongst others based upon the 1899 Hague Declaration on Asphyxiating gases, it is still an attack.
- 24.
Other examples could be given such as the opening of a dam, resulting in a flood.
- 25.
Bothe et al. 1982, p. 286.
- 26.
Ducheine 2015, p. 221.
- 27.
Kalshoven and Zegveld 2011, p. 100.
- 28.
Schmitt 2013, p. 106.
- 29.
Schmitt 2013, p. 110.
- 30.
Sandoz et al. 1987, p. 603.
- 31.
See for instance Schmitt 2013, part II on the law of cyber armed conflict.
- 32.
Until now there is no authorative definition of the cyber domain, or as it sometimes referred to as cyberspace. For this contribution, the definition as it is given in the Tallinn Manual will be used: The environment formed by physical and non-physical components, characterized by the use of computers and the electromagnetic spectrum, to store, modify, and exchange data using computer networks. Schmitt 2013, p. 258.
- 33.
The cyber domain is regularly referred to as the fifth domain following land, sea, air and space. See for example Defensie Cyber Strategie (Defence Cyber Strategy), Kamerstukken (Parliamentary Papers) II 2011–2012, 33 321 nr 1. Declaration NATO Summit 2016 Warsaw, see the Chapter by Theo Brinkel in this Volume.
- 34.
Gill and Ducheine 2013, p. 438. ILA Report 2014, p. 5.
- 35.
Schmitt 2013, p. 110.
- 36.
(D)DOS: (Distributed) Denial of Service, a situation in which people intentionally prevent a website from operating by sending too many requests to use it (Cambridge Business English Dictionary).
- 37.
Just as with cyberspace there is no authorative definition of cyber operations. For this chapter, again the definition of the Tallinn Manual will be used: The employment of cyber capabilities with the primary purpose of achieving objectives in or by the use of cyberspace, See: Schmitt 2013, p. 258.
- 38.
See for instance back letter rule 30 “definition of cyber attack” in the Tallinn manual and its following commentary (Schmitt 2013, pp. 106–110) that defining cyber attack as: a cyber attack is a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction to objects.
- 39.
Following the widely accepted dichotomy between humans and objects in LOAC.
- 40.
Additional Protocol I, Article 51(2).
- 41.
Sandoz et al. 1987, p. 618. In the Commentary to Additional Protocol I, Article 51(2) they state that breaching this provision is defined a grave breach (Article 85 Additional Protocol I) when it results in death or serious injury to body or health.
- 42.
Additional Protocol I, Article 35(2).
- 43.
- 44.
Like the announcement of terror attacks.
- 45.
Additional Protocol I, Article 52(1).
- 46.
Additional Protocol I, Article 52(2).
- 47.
Sandoz et al. 1987, p. 634.
- 48.
Sandoz et al. 1987, p. 633.
- 49.
For this chapter the definitions of the Tallinn Manual will be used which are: Data: The basic elements that can be processed or produced by a computer (Schmitt 2013, p. 258) and Software: The non-Physical components of a computer system and of cyber infrastructure. These components include programs, applications, and related data (Schmitt 2013, p. 261). The difference will be addressed later in this chapter.
- 50.
Additional Protocol I, Article 52(2).
- 51.
Sandoz et al. 1987, p. 634.
- 52.
Harrison Dinniss 2015, p. 43.
- 53.
Additional Protocol I, Article 52(2).
- 54.
Additional Protocol I, Article 52(2).
- 55.
Harrison Dinniss 2012, p. 3.
- 56.
Mučak 2015, p. 65.
- 57.
Bothe et al. 1982, p. 321.
- 58.
Schmitt 2002, p. 381.
- 59.
As mentioned before, this was ‘any combat action that is aimed at, or results in, physical consequences for the adversary’.
- 60.
Which is logical because “The Rules were adopted employing the principle of consensus”, see Schmitt 2013, p. 6.
- 61.
Schmitt 2013, p. 6.
- 62.
Schmitt 2013, black letter rule 30, p. 106.
- 63.
Schmitt 2013, p. 108.
- 64.
Schmitt 2013, p. 108.
- 65.
Schmitt 2013, p. 109.
- 66.
Schmitt 2013, p. 109.
- 67.
Schmitt 2013, black letter rule 38, p. 125.
- 68.
Schmitt 2013, p. 108.
- 69.
Schmitt 2013, p. 127.
- 70.
The environment formed by physical and non-physical components, characterized by the use of computers and the electromagnetic spectrum, to store, modify, and exchange data using computer networks, see: Schmitt 2013, p. 258.
- 71.
US Department of Defense (2013), JP 3-12: Logical Network Layer and Cyber persona Layer.
- 72.
Ducheine and Van Haaster 2014, p. 310. The Open System Interconnection model: datalink, network, transport, session, presentation and application layers.
- 73.
Harrison Dinniss 2015, p. 41.
- 74.
Harrison Dinniss 2015, p. 41.
- 75.
Harrison Dinniss 2015, p. 41.
- 76.
Ducheine and Van Haaster 2014, p. 310.
- 77.
Harrison Dinniss 2015, p. 41.
- 78.
- 79.
Additional Protocol I, Article 51(1). Emphasis added.
- 80.
Additional Protocol I, Article 52(1). Emphasis added.
- 81.
See the aforementioned discussion on functional disruption.
- 82.
Harrison Dinniss 2015, p. 42.
- 83.
A possible example is changing the blood type in the health record of an enemy wounded soldier in a hospital who, as a result, gets a blood transfusion with blood not of his type.
- 84.
O’Connell 2013, p. 37.
- 85.
Schmitt 2002, p. 378, makes the analogy with psychological operations against the civilian population. As long as they do not cause physical harm (and they are not intended to terrorize), they are entirely permissible.
- 86.
Schmitt 2002, p. 378.
- 87.
Although some writers seem to suggest that if the effects of an operation are limited to cyberspace, these operations are outside the scope of LOAC, Mačak 2015, p. 59. Also see Schmitt 2013 p. 127 where some experts argued that data per se should be regarded as object because otherwise “datasets would potentially escape the regulatory reach of the law of armed conflict” (emphasis added).
- 88.
Droege 2012, p. 533.
- 89.
Droege 2012, p. 555.
- 90.
Think only of the economic effects because of the costs involved in an armed conflict.
- 91.
Additional Protocol I, Article 51(1).
- 92.
See Sect. 14.1 of this chapter.
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Acknowledgements
The author would like to thank Lieutenant Colonel (RNLAF) Guus de Koster and Jeroen van den Boogaard for their most welcome suggestions and assistance.
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van den Bosch, B. (2017). Non-Kinetic Capabilities and the Threshold of Attack in the Law of Armed Conflict. In: Ducheine, P., Osinga, F. (eds) Netherlands Annual Review of Military Studies 2017. NL ARMS. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-189-0_14
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