Information Operations under International Law

An information operation or activity (IO) can be defined as the deployment of digital resources for cognitive purposes to change or reinforce attitudes or behaviors of the targeted audience in ways that align with the authors\u27 interests. While not a new phenomenon, these operations have become increasingly prominent and pervasive in today\u27s digital age, a trend that the ongoing war in Ukraine and the use of the internet for terrorist purposes tragically demonstrate. Against this backdrop, this Article critically assesses the existing international legal framework applicable to IOs. It makes three overarching claims. First, IOs can cause real and tangible harms to individual and state interests protected by international law. To prevent and remedy such harms, a robust and comprehensive legal framework constraining the use of IOs by both state and non-state actors becomes a necessity. Second, existing international law regulates IOs through a system of prohibitions, permissions, and requirements. In particular, the Article analyzes the extent to which international human rights law, the principles of non-intervention and sovereignty, and due diligence obligations apply to state and non-state uses of IOs. Third, the fact that existing international law captures some of the harms of IOs does not mean that this framework is sufficient or adequate. In fact, we argue that, in their current form, international rules on IOs are only partially effective given challenges relating to their (i) application, (ii) orientation, (iii) complexity, and (iv) enforcement in the context of information and communications technologies. While accepting that international law, both conventional and customary, already contains important protections against harmful IOs, our analysis aims to reignite a much-needed discussion of the merits and shortcomings that adopting a new regime tailored to IOs might produce

Strengthening the U.S.-Japan Alliance: Pathways for Bridging Law and Policy, Columbia Law School, 2020

During the three years leading up to this year ’s 60th anniversary of the signing of the 1960 U.S.-Japan Security Treaty, a series of workshops were held under the joint sponsorship of Columbia Law School’s Center for Japanese Legal Studies and the National Defense Academy of Japan’s Center for Global Security. Bringing together experts in international law and political science primarily from the United States and Japan, the workshops examined how differing approaches to use of force and understandings of individual and collective self-defense in the two countries might adversely affect their alliance. The workshop participants explored the underlying causes of the gap in understanding between the United States and Japan with respect to these issues, and they considered the alliance in the conte xt of each state’s interpretation of international law and policy positions regarding its rights and obligations under such law. In doing so, they also examined how the differing approaches could be applied to possible crisis situations of current concern in East Asia, and what that might mean for alliance relations

Revisiting past cyber operations in light of new cyber norms and interpretations of international law:: inching towards lines in the sand?

This article traces the evolution of interpretations of international law and international cyber norms on responsible state behaviour in cyberspace by reassessing five major – and allegedly state-led – cyber operations: Stuxnet 2010; Belgacom 2013-2014, the Ukrainian power grid 2015, the US presidential election 2016, and NotPetya 2017. Taking recent normative developments and emerging state practices as primary points of refence, it investigates how the current normative landscape can shed light on the nature, (il)legitimacy, and (un)lawfulness of these past operations. For each case, the analysis engages with: i) the elements triggering the violation of norms, principles and international law; ii) the legal and normative significance of recent sources of norms and interpretations of international law; and iii) the legal and political obstacles still lying beyond their application. Taken together, the reassessment of these cyber operations reveals how, in hindsight, the international community has come a long way in calibrating its normative language and practices in calling out irresponsible behaviour in cyberspace. With states taking small, but unprecedented, steps through public attributions and statements on international law in cyberspace, most of the past cyber operations analysed here would arguably feature an attribution in the current climate. At the same time, substantial differences in national interpretations of international law continue to stand in the way of clarity on the terms of its application. In light of this, this article ultimately suggests that cyber norms and the interpretations of international law require further granularity to become ‘lines in the sand’

Colouring in the Grey Zone: The Legal Capacity of the Australian Defence Force to Respond Domestically to Interference Operations

The ability to, en masse, micro-target individuals based on their explicitly stated and implicitly assessed preferences is a capability unique in history. It has created a new form of statecraft that this thesis calls interference operations (IOs), which have undergone a paradigm shift from the high cost, low impact active measures of the Cold War. Modern IOs are increasingly preferred by States due to the legal grey zone surrounding them. Grey zone operations is a term increasingly used within Australian policy documents and academia to describe activities that deliberately take place below identified and articulated thresholds of international and domestic law. It is a term that is relative to both the operation being conducted, and the legal frameworks involved. With respect to IOs, the grey zone is compounded by the fact that they have only recently begun to be explored by Australian policy-makers, with a strategic framework being centred on illuminating false information and allowing the Australian public to seek the truth themselves. This strategic framework, however, is founded upon the questionable assumption that in the ‘marketplace of ideas’ individuals will act rationally and actively seek the truth. This doctoral project advocates an alternate strategic framework: deterrence. It is a framework that aims to instil costs on those who would conduct IOs. These costs can be achieved through denial and punishment, the earlier of which this thesis focuses upon. Underpinning effective deterrence is legal credibility. This thesis seeks to understand the legality of counter-IO activities by the one branch of Government whose task it is to deter: the Australian Defence Force (ADF). In doing so, this thesis focuses upon constitutional executive power as a lawful authority for ADF operations. Within constitutional executive power is found the oldest creature of the common law – the royal prerogative. Accordingly, this thesis examines the domestic constitutional legal context that empowers and restrains the ADF in domestically-focused operations with a specific emphasis on the royal prerogative. The legal history of Anglo-Saxon military intervention provides for more restrictions internally, rather than externally. This is reflected within the Australian Constitution in the oftneglected provision relating to ‘domestic violence’ – an undefined and archaic term that sets a high threshold on domestic intervention. This constitutional provision is operationalised by Part IIIAAA of the Defence Act 1903 (Cth). This thesis therefore engages novelly with whether constitutional executive power may provide a lawful authority for the ADF to respond to instances below domestic violence, and whether any legislation has abridged residual nonstatutory power. Ultimately, this thesis concludes by identifying gaps in the domestic legal framework (statutory and non-statutory) and provides suggested legislative amendments. Canvassing alternate models for legislative reform, the thesis grapples with whether non-statutory executive power should ultimately be abridged, or whether its flexibility should be retained. Finding that dynamic situations require dynamic legal authority, this thesis provides a model of legislative reform that allows the difficulties of federalism to be surmounted, in an attempt to colour in the grey zone.Thesis (Ph.D.) -- University of Adelaide, Adelaide Law School , 202

Governing Cyberspace: Behavior, Power and Diplomacy

Cyber norms and other ways to regulate responsible state behavior in cyberspace is a fast-moving political and diplomatic field. The academic study of these processes is varied and interdisciplinary, but much of the literature has been organized according to discipline. Seeking to cross disciplinary boundaries, this timely book brings together researchers in fields ranging from international law, international relations, and political science to business studies and philosophy to explore the theme of responsible state behavior in cyberspace. . Divided into three parts, Governing Cyberspace first looks at current debates in and about international law and diplomacy in cyberspace. How does international law regulate state behaviour and what are its limits? How do cyber superpowers like China and Russia shape their foreign policy in relation to cyberspace? The second focuses on power and governance. What is the role for international organisations like NATO or for substate actors like intelligence agencies? How do they adapt to the realities of cyberspace and digital conflict? How does the classic balance of power play out in cyberspace and how do different states position themselves? The third part takes a critical look at multistakeholder and corporate diplomacy. How do global tech companies shape their role as norm entrepreneurs in cyberspace, and how do their cyber diplomatic efforts relate to their corporate identity

State responsibility for international law violations involving non-state actors in armed conflict

Contemporary conflict is replete with examples of states acting through private partners or proxies to pursue their foreign policy and security goals. Frequently, however, non-state actors (NSA) in receipt of state support act in a manner that potentially violates international law. This thesis considers states’ international responsibility for such breaches, examining the circumstances in which the law of state responsibility attributes an NSA’s conduct to a state. The principal objectives of the study are threefold: to clarify the precise circumstances in which private conduct is attributable to a state in contemporary conflict; to evaluate the sufficiency of the rules of attribution; and to assess how any inadequacies in the regulation of states’ support to NSAs in conflict situations should be remedied. Having examined the law’s practical impact, using three contemporary conflicts as case studies, the thesis argues that there is a gap in accountability that allows states to act via proxy in a manner that they could not lawfully act via their own organs. While this lacuna is partially filled by primary norms of international law, these are fragmented and incomplete in their effects. To properly regulate states’ dealings with NSAs in armed conflict, therefore, international law must evolve. First, a less stringent interpretation of the rules of attribution is necessary, to better meet the object and purpose of the law of state responsibility in light of the realities of states’ contemporary interactions with NSAs. Second, international law must hold states to account for their own actions in facilitating NSA conduct that would be internationally wrongful if perpetrated directly by the state. This can be addressed not only via the law of state responsibility but also by strengthening relevant primary norms of international law

NL ARMS Netherlands Annual Review of Military Studies 2021

This is open access volume of the NL ARMS offers an interdisciplinary view on the domain of Compliance and Integrity in International Military Trade (CIIMT), integrating defence economics, international law, arms export control frameworks and policies, information management, organizational sciences and ethics. Although, in academia, and from an interdisciplinary perspective, CIIMT constitutes a relatively novel research domain, across private and public defence-related sectors, the subject evokes high levels of attention and interest, instigating a need for critical thinking, reflection and creativity to address ensuing multi-faceted issues and problems. The Faculty of Military Sciences at the Netherlands Defence Academy extends an in-house MSc programme on CIIMT, which, by integrating practice-based and scientific-based knowledge, aims to contribute to this need. The MSc programme on CIIMT is concerned with exploring, analysing, understanding, explaining, controlling and improving the military dimension in international military trade. More particularly, CIIMT studies managerial questions regarding strategic trade control of military and dual-use goods and services. CIIMT ties in with the Netherlands Defence Academy’s vision on scientific education, embedded in the reflective practitioners' paradigm uniting both management and leadership skills needed to decide and operate in high-tension and high-risk knowledge intensive environments. The Faculty of Military Sciences uses the reflective practitioners’ paradigm to refer to critical thinking, reflection and Bildung that characterize its thinking doers, the so-called Thinking Soldiers, either at the academic Bachelor’s or Master’s level. In view of the complexity of the international trade regarding military and dual-use goods and services, the rapid evolvement of strategic trade control and frameworks, and its importance to procurement processes, defence organizations require innovative thinking doers, who, based on an in-depth understanding, from an interdisciplinary perspective can be expected to find - and take responsibility for - creative solutions to problems. NL ARMS 2021 comprises, amongst others, contributions from students and lecturers partaking in this programme. All the editors are affiliated with the Faculty of Military Sciences of the Netherlands Defence Academy in Breda, The Netherlands