Crimes, War Crimes and the War on Terror

by Duncan Hollis

‘Tis the season for academic conferences. I’m off today to participate in a conference tomorow, April 20, organized by Professors John Kroger and John Parry at Lewis and Clark Law School, entitled “Crime, War Crimes and the War on Terror.” Addressing the linkages (and tensions) implicit in this theme, the Conference will consist of four panels: (1) Domestic Law & National Security; (2) The Other Criminal Process: War Crimes, Military Commissions, and Habeas Corpus; (3) Perspective from International Law; and (4) Surveillance and Transparency. You can find a list of speakers here.

My presentation will focus on an area that spans both the criminal and war paradigms—”information operations” or IO. For more than a decade, military thinkers have debated the impact of IO on armed conflict. Responding to the possibilities (and vulnerabilities) inherent in the Internet’s interconnectivity and the worldwide spread of new forms of communication, IO has emerged as a “new category of warfare.” It can involve “psychological operations” (psyops) that utilize both new and old methods of conveying information (e.g., broadcasting satellite radio messages, dropping leaflets from aircraft) with the aim of manipulating the views of foreign governments, organizations, or individuals. Or, IO may involve cutting-edge “computer network attacks” that spread viruses to—or hack into—adversary computer systems for the purpose of disabling, degrading, or destroying such systems (or the infrastructure they support). Despite the novelty of some of its methods, a majority of scholars and government officials have concluded that IO can be regulated by analogy using existing international law paradigms. My presentation will challenge that view. Even as it applies to IO, the existing system suffers from several, near-fatal conditions: uncertainty (i.e., military commanders lack a clear picture of how to translate existing rules into the IO environment); complexity (i.e., overlapping legal regimes threaten to overwhelm military commanders seeking to apply IO); and insufficiency (i.e., the existing rules simply fail to address the basic challenges of modern conflicts with non-state actors). To redress these deficiencies, I’ll propose that states adopt a new set of rules—an international law for information operations or “ILIO.”

I’d be excited to meet any Opinio Juris readers in attendance, so please introduce yourself if you come.

Comments are closed.