The Navy hosted its annual global war game in Newport, Rhode Island, from 14 to 25 August 2000. I was privileged to serve as one of the legal advisors to those playing the various roles in the National Command Authority (NCA) cell. It was a thrill to observe so many brilliant operational minds—active duty, reserve, retired, and civilian—confront serious issues of national security and resolve them skillfully. Some of these players, however, and many of the others I encountered in other wargaming cells, were hampered by a collective misunderstanding of international law in certain important respects. In several instances, had they not labored under so many misconceptions, they would not have felt nearly so restrained in making certain decisions.
Acts of War
During the game, many senior leaders devoted an undue amount of time to "acts of war," debating whether some action taken by the adversary or some action we proposed should or would be viewed as an act of war. Those discussions generally were misguided.
In modern armed conflict, as viewed by most international lawyers today, the concepts of "declared war" and "acts of war" have fallen into disuse. Historically, an act of war was viewed as some action tantamount to a declaration of war, indicating intent to be at war or causing such a serious breach of rights that the other nation would be justified in declaring war. Since World War II, however, nations no longer are inclined to declare wars as such. The analysis of such actions now more properly focuses on the language in Chapter VII of the U.N. Charter, which looks for the "existence of any threat to the peace, breach of the peace, or act of aggression" (Article 39).
During the game, the debate regarding acts of war often centered on something like a list. The perception among many players appeared to be that, to prove one's point or to serve one's immediate purpose, one need only contend that the action in question was listed among the acts of war. Logically, these persons would view as legitimate all other acts not on their personal lists. (These mythical lists existed only in the minds of certain players, and they were in no way related to the list involved in the U.N. General Assembly's 1974 attempt to define acts of aggression.)
There is no approved list that sets forth these so-called acts of war—certainly not one relevant to modern armed conflict—nor is the inquiry regarding acts of war relevant. Modern analysis is much more properly focused, in Chapter VII terms, on the threat or use of aggressive force. That analysis generally involves a search for some legal justification for one nation's use of armed force against another-for example, the use of force in furtherance of a U.N. Security Council resolution, in the name of humanitarian intervention, or in self-defense. The latter justification deserves special attention.
Self-Defense
By definition, a nation is not acting aggressively when it acts in self-defense. Self-defense is a legal right that is inherent in a nation's sovereignty. Article 51 in Chapter VII of the U.N. Charter recognizes self-defense as such, on both an individual-national and collective basis. The self-defense analysis becomes much more difficult, however, when a nation attempts to exercise that right in a preemptive or anticipatory manner.
The U.N. Charter does not use the term "anticipatory self-defense," but in recent decades nations have come to rely on it more and more to justify various uses of force (examples include the Six-Day War in 1967, Israel's attack on an Iraqi nuclear reactor in 1981, and the United States' attack on terrorist training camps in Afghanistan in 1998). Put simply, must a nation wait to fight until it absorbs the first blow? Or, if it sees a forthcoming attack, may it exercise its right of self-defense in anticipation of that attack? If the latter, then a first strike or preemptive attack may very well be in order.
Anticipatory self-defense is extremely controversial, generally because it is so subjective, open to abuse, and potentially the cause of escalation in hostilities. Nevertheless, with the passage of time and increased usage, it is becoming more accepted in international law. In fact, it already serves as the basis for important doctrinal aspects of U.S. and NATO standing rules of engagement. In appropriate circumstances (i.e., an unambiguous warning or other factual indications) the United States should not hesitate to rely on anticipatory self-defense—especially when the stakes are high. Yet, many of this year's war gamers still expressed undue concern that such preemptive measures would lack legal justification.
During this year's game, some players tried to introduce "interceptive disarmament," a new concept they touted as an "expansion of national self-defense," "proactive attacks," and a "powerful enabler" for our forces. Although never defined adequately, interceptive disarmament went well beyond the realm of anticipatory self-defense. Some players perceived it as a justification for certain actions—more as a matter of convenience than defense, seeking to put our forces in a more advantageous position just in case hostilities should happen to break out. If it should involve the use of force, interceptive disarmament would go well beyond justifiable defensive measures, and frequently it would run an unacceptable risk of making us an aggressor in violation of international law.
Introducing and exploring new concepts are among the many useful purposes of war games, but attempts to expand the bounds of international law are not. In this case, most war gamers eventually seemed to understand that important point and relied, instead, on more accepted concepts of self-defense.
Space Law
In Navy Global 2000, as in most other scenarios in which I see space law addressed, there was no shortage of misconceptions. Invariably, our operators view international law as it relates to space operations to be far more restrictive than it actually is. Yes, space has a legal regime—but space is neither deweaponized nor demilitarized as a matter of international law. Most of the relevant law stems from the Outer Space Treaty of 1967, which established the legal regime for space and incorporated international law as we know it on Earth, including the U.N. Charter. Thus, for example, laws regarding aggression, self-defense, and neutrality apply in space as they do on Earth. Furthermore, unless one is dealing with the moon or other celestial bodies, there are very few legal restrictions regarding weapons in space—so long as a nation does not put weapons of mass destruction in Earth orbit.
Although other legal restrictions regarding space operations exist, they are not nearly so restrictive as many believe. We need to educate our operators (especially our future leaders) that we do indeed conduct our activities in space for "peaceful purposes," but that, for decades, most nations have interpreted "peaceful" as meaning "nonaggressive." Any other interpretation would, in large part, render meaningless the Outer Space Treaty's incorporation of the U.N. Charter, especially its Chapter VII provisions.
Computer Network Warfare
As in space law, misconceptions abound concerning computer network warfare-though in this case they are more understandable. Although this new field of law draws heavily from well-established laws of war and U.N. Charter provisions, especially those related to self-defense, there still are numerous questions to be resolved. A common problem is deciding whether a given computer network attack should be treated as one nation's use of force against another. The answer often involves comparing the effects of a computer network attack to those that would have resulted from some form of conventional weapon. Again, it serves no purpose to ask whether a given computer network attack (ours or theirs) should be deemed an "act of war." The same analysis applies here as in other, more familiar forms of modern warfare-looking for the threat or use of aggressive force and the existence, or lack, of any legal justification such as self-defense.
Many of the Department of Defense's best legal minds have devoted themselves to these and other similar computer network warfare issues for the past several years. As a result, our operators and their legal staffs now have a framework for legal analysis as they confront these new and complex issues of modern warfare. No legal staff confronting these issues should be without the Department of Defense General Counsel's "An Assessment of International Legal Issues in Information Operations," now in its second edition (November 1999).
In many cases, international law is not nearly so restrictive as many of our operators believe, but that does not mean we operate in a world (or in space) where there are "no holds barred." Certain legal restrictions apply, and our operators should be familiar with them. But even when the law permits some proposed course of action, it may not be wise to pursue that course. Policy considerations—whether based on rules of engagement, national policy, or just good sense—may dictate otherwise.
Colonel Dillingham is the legal advisor at NORAD and U.S. Space Command. In his prior U.S. Marine Corps service, he was an A-6 bombardier/navigator with Marine All-Weather Attack Squadron (VMA[AW])-332.