Technology and the Law on the Use of Force

New Security Challenges in the Twenty-First Century

Jackson Maogoto

• Publisher: Taylor & Francis
• Year: 2014
• eBook ISBN: 9781134445646
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

As governmental and non-governmental operations become progressively supported by vast automated systems and electronic data flows, attacks of government information infrastructure, operations and processes pose a serious threat to economic and military interests. In 2007 Estonia suffered a month long cyber assault to its digital infrastructure, described in cyberspace as 'Web War I'. In 2010, a worm—Stuxnet—was identified as supervisory control and data acquisition systems at Iran's uranium enrichment plant, presumably in an attempt to set back Iran's nuclear programme. The dependence upon telecommunications and information infrastructures puts at risk Critical National Infrastructure, and is now at the core of national security interests.

This book takes a detailed look at these new theatres of war and considers their relation to international law on the use of force. Except in cases of self-defence or with the authorisation of a Security Council Resolution, the use of force is prohibited under the UN charter and customary international law. However, the law of jus ad bellum was developed in a pre-digital era where current technological capabilities could not be conceived. Jackson Maogoto asks whether the law on the use of force is able to deal with legal disputes likely to arise from modern warfare. Key queries include how one defines an armed attack in an age of anti-satellite weaponry, whether the destruction of a State's vital digital eco-system or the "blinding" of military communication satellites constitutes a threat, and how one delimits the threshold that would enliven the right of self-defence or retaliatory action. The book argues that while technology has leapt ahead, the legal framework has failed to adapt, rendering States unable to legally defend themselves effectively.

The book will be of great interest and use to researchers and students of international law, the law of armed conflict, Information Technology and the law, and counter-terrorism.

1 Use of force Displaced twentieth-century rules, norms and standards?

DOI: 10.4324/9780203716052-4

Introduction

In the twenty-first century, military powers are concentrating on projecting military power through incorporation of technology geared toward leaner and efficient projections of force. As the evolution of outer and cyber spaces into distinct theatres of military operations unfolds, a serious legal deficit is exposed in the absence of specific or tangential international norms restricting the use of means and methods of war in these digital commons. The regime on Outer Space Law is not necessarily patchy with regard to militarisation and weaponisation. However, key provisions of relevant treaties and instruments have been overtaken by the tremendous technological and engineering breakthroughs, particularly in the course of the last four decades of the twentieth century. On one hand the provisions of key instruments offer broad interpretational leeway for and against the militarisation and weaponisation of outer space, while on the other hand, cyber warfare itself sits uneasily within the UN Charter regime on the use of force. This is in light of the UN Charter drafters’ almost singular fixation on conventional land, air and sea warfare – essentially kinetic (physical destruction) force. Thus it is notable that:

An armed attack involves the use of armed force and not mere economic damage. Economic damage, for example, by way of trade suspension, or by use of a computer virus designed to paralyse the financial operations of a State's stock exchange or to disable the technology . . . may have a devastating impact on the victim State but the principles governing the right to use force in self-defence are confined to a military attack. ¹

Turning back to the UN Charter in light of the quote above, when it was drafted in 1945, the right of self-defence was the only included exception (reserved to State discretion) to the general prohibition of the use of force. Under the UN Charter, unilateral acts of force regardless of motive were made illegal. Individual or collective self-defence became the cornerstone relating to use of force and since then has been invoked with regard to almost every use of external military force.

The pivot on which present day jus ad bellum hinges is firstly on Article 2(4) of the Charter, which articulates the principle of the prohibition of force in international relations. ² This provision introduced to international politics a radically new notion: a general prohibition of the unilateral resort to force by States. The Article asserts the need for peaceful resolution of disputes stating that: ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the UN.’ ³ The terms ‘territorial integrity’ and ‘political inde pendence’ are not intended to restrict the scope of the prohibition of the use of force. Rather, the two indicia cover any possible kind of transboundary use of armed force. ⁴

The next section of this chapter will outline generalities of the UN Charter on the concepts and principles that undergird the thresholds relating to the use of force. As stated in the Introduction of this book, this chapter is specifically geared to be an outline rather than a detailed overview premised on the book's themes. Based on this, it will flag issues that are germane to the book's analysis and should not be perceived as a merely simplistic and parochial enunciation of the complexities relating to the extant use of force regime.

The concept of armed attack

Paragraph 7 of the Preamble to the UN Charter states that one of the core goals of the UN is ‘that armed force shall not be used, save in the common interest’. Article 44 reinforces this view. The Charter uses the term ‘force’ alluding to the fact that in light of the travaux preparatoires only military force was at that time in history the concern of the prohibition of the use of force. ⁵ This conclusion is confirmed by the Declaration of Friendly Relations adopted by the UN General Assembly on 24 October 1970. ⁶ In interpreting the principle that States shall refrain in their international relations from the threat or use of force, the Declaration deals solely with military force. ⁷ This prescription means military force is premised on conventional means – essentially kinetic force. As Gerry Simpson notes:

Traditionally, the concept of an ‘armed attack’ was understood to involve a cross-border use of military force by one State against another . . . In other words, the UN Charter was designed to prevent or forestall or confront a repeat of the last war, the Second World War. This may account for its lack of precision and guidance in relation to unconventional uses of force since then. ⁸

Mathew Waxman bolsters Simpson's view, averring that

the Charter's preamble sets out the goal that ‘armed force . . . not be used save in the common interest.’ . . . Article 51 speaks of self-defense against ‘armed’ attacks. There are textual counter-arguments, such as that Article 51's more specific limit to ‘armed attacks’ suggests that drafters envisioned prohibited ‘force’ as a broader category not limited to particular methods. However, the discussions of means throughout the Charter and the document's negotiating history strongly suggest the drafters’ intention to regulate armed force differently and more strictly than other coercive instruments. ⁹

Essentially then the framework for analysing armed attacks is traditionally relatively well settled including the core legal principles governing its meaning. Accompanying armed attacks are the indicia of scope, duration and intensity in evaluating whether a particular use of force constitutes an armed attack. ¹⁰ Harkening back to the French language version of the UN Charter, it refers to ‘armed aggression’ rather than an ‘armed attack’. About three decades after the UN Charter entered into force, in 1974, the UN General Assembly passed a resolution on the Definition of Aggression. ¹¹ The resolution requires an attack to be of ‘sufficient gravity’ before it is considered an armed attack. ¹² While the resolution never defines armed attacks, it provides examples that are widely accepted by the international community. ¹³ It is to be noted that the resolution primarily deals with conventional attacks. While the resolution helped settle the meaning of armed attacks for conventional attacks, the more technology has advanced, the more attacks have come in forms not previously covered by various State declarations and practices. ¹⁴

Article 51: the State's right to respond in self-defence

The UN Charter permits State actions that are reasonably necessary in self-defence when faced with an ‘armed attack’. ¹⁵ Article 51 provides that ‘[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence . . .’. ¹⁶ This defensive right exists until the Security Council mobilises to halt the attack. The term ‘armed attack’ represents the key notion of the concept of self-defence pursuant to Article 51. In the final analysis, its interpretation determines how far unilateral force is still admissible.

As straightforward as Article 51 appears, its interpretation and application remains a source of considerable debate in much the same way as the concepts of ‘armed attack’ and ‘use or threat of force’. The key difficulty in interpreting Article 51 is the word ‘inherent’. While the UN Charter does not indicate what rights are ‘inherent’, the inclusion of this term was considered significant by the drafters of the Charter. The initial draft of Article 51 made no mention of this ‘inherent right’, but it was changed to make the definition of self-defence acknowledge that right. ¹⁷ Two schools of thought have developed with regard to the scope of Article 51 – those who take the restrictive (literal) approach and those who take the counter-restrictive (expansive) view. Depending on which position one takes, self-defence may be viewed either as solely predicated on a responsive act to a current attack or as a broader notion encompassing in certain circumstances anticipatory acts to an imminent threat of attack.

The restrictionist approach

Restrictionists adhere to the argument that the term ‘inherent right’ doesn't modify self-defence in any meaningful way, meaning the requirement of some incursion beyond national borders must occur before the right is activated. ¹⁸ The restrictionist approach cites the absolute prohibition of resort to forcible self-help as set out in Article 2(4) subject only to the limited exception contained in Article 51, which permits recourse to self-defence only when faced with an actual ‘armed attack’. The Article does not contemplate anticipatory or pre-emptive actions by a State that is merely threatened or apprehensive of hostile acts by a Third State. Rather, it requires a State to refrain from responding with force unless actively engaged in repelling an armed attack. ¹⁹ If the correctness of the view is that Article 51 of the UN Charter is the authoritative definition of the right of self-defence and is not qualified or supplemented by the customary law and is accepted, then States are bound by the black-letter law of the Charter. Under this understanding, States have less extensive grounds to support armed force undertaken other than within the framework of the UN Charter. ²⁰ This reinforces Article 2(4)'s prohibition on the use of force and the complementary Article 51 right of self-defense within the ambit of military attacks or armed violence.’ ²¹ As a follow on, and to flag an aspect that will be discussed, Michael Waxman (2011) notes that:

[r]eading Article 2(4)'s prohibition of force to include such intrusion into another sovereign's domain would lead to the conclusion that . . . like past efforts to define Article 2(4) ‘force’ as coercion, efforts to expand its coverage beyond armed force so as to include violations of sovereign domain such as propaganda or political subversion never gained significant traction. ²²

The counter-restrictionist approach

The counter-restrictionist approach adopts an expansionist view. Proponents interpret the word ‘inherent’ to mean that the UN Charter recognises and includes those rights of self-defence that existed under customary international law prior to the drafting of the Charter. ²³ The counter-restrictionists argue that ‘inherent right’ is used to preserve the meaning of ‘self-defence’ as it existed prior to the founding of the UN. The argument is premised on the fact that under customary international law, the right of self-defence should also be judged by the standard first set out in the 1837 incident of The C...

Table of contents

• Cover Page
• Half Title Page
• Frontmatter
• Title Page
• Copyright Page
• Table of Contents
• Dedication
• Acknowledgements
• List of acronyms
• Table of cases
• Table of statutes
• Introduction
• 1 Use of force: displaced twentieth-century rules, norms and standards?
• 2 Revolution in military affairs: hi-tech weaponry, low-tech legal safeguards
• 3 The fourth domain: ascendance of outer space as a war theatre
• 4 War in the fifth domain: cyberwarfare
• 5 Discarding law by analogy: old legal frameworks for new threats
• Conclusion
• Bibliography
• Index