Michael N. Schmitt

Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework

This Chapter explores the acceptability under the jus ad bellum, that body of international law governing the resort to force as an instrument of national policy, of computer network attack. Analysis centers on the United Nations Charter’s prohibition of the use of force in Article 2(4), its Chapter VII security scheme, and the inherent right to self-defense codified in Article 51. Concluding that traditional applications of the use of force prohibition fail to adequately safeguard shared community values threatened by CNA, the Chapter proposes an alternative normative framework based on scrutiny of the consequences caused by such operations.

Wired Warfare: Computer Network Attack and Jus in Bello

This chapter examines the application of the jus in bello, or international humanitarian law (IHL), to information operations, specifically computer network attacks (CNA). Discussion centres on the use of CNA in the context of an international armed conflict, although the conclusions would apply equally to a non-international armed conflict for those customary rules of IHL which extend into that form of conflict. It begins by addressing the threshold issue of whether IHL applies at all to CNA. Concluding it does, the chapter goes on to explore the key aspects of IHL relevant to CNA operations, especially the rules which prohibit the use of indiscriminate weapons and those governing targeting. Of particular note is the discussion of the notion of “attack” in the CNA context. Ultimately, it is concluded that CNA presents a particular problem for application of the traditional IHL.

Precision attack and international humanitarian law

This article explores the relationship between precision attack and international humanitarian law. It begins by addressing the nature of precision attack, including precision technologies, the combat environment in which it occurs, attacker tactics, and the targeting process. Modern precision attacks greatest impact on international humanitarian law lies in four areas: indiscriminate attack; proportionality; precautions in attack; perfidy and protected status. The author concludes that precision warfare has both positive and negative implications for the interpretation and application of international humanitarian law on the twenty-first-century battlefield.

Green War: An Assessment of the Environmental Law of International Armed Conflict

During the First Gulf War of 1990–1991, Iraqi forces engaged in activities, including dumping oil into the Persian Gulf and igniting Kuwaiti oil wells, which drew global attention to the environmental consequences of warfare. This chapter identifies and assesses the international legal regime governing the environmental impact of armed conflict. It begins with an examination of the historical record of environmental damage during warfare. The prescriptive norms—including peacetime, customary and treaty prescriptions—governing such damage are next catalogued and analyzed. Concluding that the existing law fails to adequately address environmental consequences that result from hostilities, the author suggests how the international community should respond to its shortcomings.

The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis

Civilians who directly participate in hostilities lose their protection from attack for such time as they so participate. Additionally, they neither factor into proportionality calculations nor need be considered when taking “precautions in attack”. The principle reflects both treaty and customary international law. In 2009, the International Committee of the Red Cross released the interpretive guidance on the notion of direct participation in hostilities. This chapter critically analyzes the guidance, pointing out both its strengths and weaknesses. In doing so, it addresses four key questions: (1) Who qualifies as a civilian? (2) What acts constitute “direct participation”? (3) When does the notion apply? and (4) Do any further restrictions on attack attach to application of the rule?

Asymmetrical Warfare and International Humanitarian Law

This paper examines the impact of asymmetrical warfare on the application of international humanitarian law on the battlefield.

State-Sponsored Assassination in International and Domestic Law

This chapter examines the international and US domestic law governing assassinations conducted or sponsored by States. The issue first came to widespread contemporary attention during the first Gulf War of 1990–1991 when US forces allegedly targeted Iraqi President Saddam Hussein. Since then allegations of “decapitation” strikes against regime leadership have surfaced in such conflicts as the 1999 campaign against the Federal Republic of Yugoslavia, the 2001 strikes against the Taliban, the 2003 war with Iraq and, most recently, the 2011 UN sanctioned operations in Libya. However, the law of assassination has a long lineage, stretching back to antiquity. The chapter clarifies much of the definitional confusion regarding the term by exploring both its historical basis and the extant prescriptive norms resident in both international and US law. It concludes with a survey of the practical factors likely to affect decisions about such targeting, an evaluation of current bans, and brief recommendations for future prohibitions.

Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance

This chapter examines the international humanitarian law (IHL) principles of military necessity and humanity. It argues that the two principles undergird the entire body of IHL. Therefore, each individual IHL rule represents a delicate balance fashioned by States to accommodate both their legitimate need to be able to fight effectively on the battlefield and their desire to avoid unnecessary harm to combatants and the civilian population. However, the principles do not constitute norms which apply in addition to the existing rules, whether customary or conventional in nature. To interpret them in this manner would skew the balance upon which States have agreed.

Classification of Cyber Conflict

Explores how cyber warfare may be classified as international armed conflict, non-international armed conflict, etc.

Investigating Violations of International Law in Armed Conflict

This chapter examines the legal norms governing investigations of possible international law violations during an armed conflict. It begins by setting forth those rules derived from the 1949 Geneva Conventions, 1977 Additional Protocols and customary law. Since human rights norms also apply in armed conflicts, the chapter surveys human rights investigatory standards, and how they interact with corresponding international humanitarian law rules. Since international humanitarian and human rights law on the subject lacks granularity, State practice is surveyed in order to tease out prevailing practices that may either reflect on how treaty law is applied or reveal the broad outlines of customary law. The chapter offers conclusions as to the applicable legal standards for such investigations.