Disarmament and International Security

Committee

Photo taken from Security Affairs at <http://securityaffairs.co/wordpress/7326/cyber-crime/government-cyber-strategies-to-mitigate-growing-cyber-threats.html>

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Introduction

Welcome to the Disarmament and Security, or First Committee of the United Nations. No

body of the United Nations is better equipped to address the pressing security needs of the

international community. Since its inception, DISEC has facilitated and moderated the global

dialogue concerning topics from the arms trade to biological warfare to nuclear proliferation…

and many more! Nevertheless, the drafters of the United Nations Charter could not have foreseen

the novel challenges that the digital age has brought forth. Though DISEC has continuously

sought to evolve to address the world’s needs, it has still fallen behind on issues pertaining to

cyberwarfare, the subject of this weekend’s conference.

It has become increasingly clear in recent years that any state could potentially develop

the capacity to launch a cyber attack against another. Furthermore, as terrorist organizations

grow in size, number, and sophistication, the international community cannot rule out the

possibility of a cyber attack committed by such a group. The world lacks not only the means to

appropriately prevent or address these threats, but also the system by which to classify such

attacks. Whether a cyber attack may constitute an act of war, among other related legal

questions, has immense security implications. Lives may be saved or lost based on these

distinctions, and it is this committee’s duty to clarify them.

While the committee may choose to grapple with questions of international humanitarian

law on the one hand, it may also decide to discuss issues of international human rights law on the

other. Saving lives from the scourge of cyber warfare is a pressing issue, but so too is

maintaining the quality of those lives saved. That is why our second topic will address the right

to internet access during times of war and insurrection. It is indisputable that the freedoms of

speech and association are of paramount importance under international law, but DISEC must

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now decide how the advent of the internet changes (or does not change) the functionality of these

rights. I have confidence that whichever issue or issues this committee chooses to address,

concrete and viable solutions will emerge from the discussion!

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Introduction to the Committee

The Disarmament and Security Committee (DISEC) was envisioned as an international

forum for the discussion of the most pressing security issues that face the global community. The

resolutions that are passed under its auspices dictate the worldwide consensus on any given

issue. This committee has the power to dictate the global standards by which every state should

abide. The monitoring and oversight mechanisms that it has created further aid the global fight

toward achieving peace. DISEC has addressed issues from the arms trade to biological warfare to

nuclear proliferation, and has sufficient clout to tackle the concerns of the digital age.

What DISEC cannot do, however, is make laws. Because this committee pertains to the

United Nations General Assembly, its resolutions enjoy no binding legal authority. Therefore,

delegates in this committee will not be able to require certain action or condemn the actions of

other states. Nevertheless, this does not leave DISEC toothless. General Assembly committees

are instrumental in establishing the norms that may eventually crystallize into binding

international law at a later point. It is therefore crucial that DISEC take measures to outline the

behavior the international community expects from its members.

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Topic 1: The Legal Status of Cyberwarfare Scope of the Committee

There is an extensive array of topics that may be discussed within the broad issue of

cyberwarfare. This committee will strive to address those that are most relevant to the question

of the legal status of cyber attacks and, more generally, cyberwarfare in the international legal

context. Below you find key information relating to the subtopics that this committee should

debate and include in a resolution.

Jus ad Bellum

Jus ad bellum, or the “right to war,” comprises a set of legal norms that govern the

justifications for waging war. Often referred to in the context of Just War Theory, jus ad bellum

dictates under what set of circumstances war may legally be waged. The Charter of the United

Nations, a legally binding document, states 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 United Nations.” (Ch. I, Art. 2, § 4)

This committee must determine what kind of cyber attack (if any) might qualify as a “use of

force,” signifying a break of the Charter. Furthermore, it must be determined if a cyber attack

can, by any definition this committee arrives at, violate the “territorial integrity” of another state.

In a world of IP addresses and domain names, it can be plausibly argued that an infiltration of a

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states digital infrastructure does not imply a violation of sovereignty as defined by the UN

Charter. Others argue that if a cyber attack results in tangible damage to property or harm to

military/civilian targets, it still constitutes a breach of territorial integrity.

But what if no such damage occurs? If a state marched its army beyond the borders of its

neighbor, but fired no shots, it would be obvious that international law was still broken. Can the

same logic extend to a state that simply accesses classified documents or breaches a state-run

network’s firewalls? The law in this case becomes even murkier and is in need of further

clarification.

Jus in Bello

Also known as international humanitarian law, or simply the law of war, jus in bello

addresses the rules all states are subject to once armed conflict has already erupted. It is currently

unclear what framework of international law would govern armed conflict conducted partially or

in full through digital means. If international humanitarian law applies, then states would be

required to adhere to the principles of distinction (refraining from targeting civilians) and

proportionality (only launching attacks necessary to achieve legitimate military objectives).

Moreover, states might liable for various crimes punishable under international criminal

law following a cyber attack. War crimes include acts such as the intentional targeting of

civilians, engaging in “total war,” and utilizing indiscriminate weaponry, among many others. A

full list can be found under Article 8 of the Rome Statute of the International Criminal Court.

This committee must determine what forms of cyberwarfare would be classified as war crimes

given the parameters outlined by the Rome Statute.

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Furthermore, a crime against humanity (which need not necessarily occur in a time of

war) refers to a series of acts “committed as part of a widespread or systematic attack directed

against any civilian population, with knowledge of the attack.” Such acts include murder,

extermination, torture, and inhumane acts, among others. If a state successfully shut down a

nation’s power grid or internet connection, it might wreak havoc and have dire consequences that

may amount to a crime against humanity. DISEC must determine under what circumstances this

could be the case.

Non-international Armed Conflict

Thus far, this background guide has mainly discussed issues related to interstate conflict.

However, DISEC must also consider the possibility of a non-international armed conflict (NIAC)

emerging in which cyberwarfare is employed. This term is defined as an armed conflict between

either a state and a non-state actor or one between two non-state actors. The same rules of

international humanitarian law generally apply to NIACs, but the distinction between such a

conflict and mere criminal activity might be obfuscated in the cyber context. In the digital age,

what distinguishes an act of war from a crime subject to national jurisdiction? This question must

be addressed in order to fill the gaps in international when it comes to cyberwarfare.

New or Existing Treaty Framework

It may be that the complex legal questions presented by cyberwarfare merit a completely

separate international treaty. Such a document would clarify the status of cyberwarfare once and

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for all, providing a clear standard for the international community to uphold. Treaties are

typically binding and often include enforcement mechanisms, which could monumentally

improve security worldwide. Nevertheless, the treaties are notoriously difficult to draft and

adopt, since a significant consensus with regards to its provisions is essential to its success.

Moreover, it could be argued that a new treaty is unnecessary. Existing legal instruments, norms,

and principles might already adequately cover cyberwarfare, eliminating the need to embark on

the long journey of treaty ratification. DISEC should make a recommendation as to which route

is desirable, considering the global community’s need for both the rule of law and the

preservation of international security.

Recent Attacks

Cyber attacks are a very real threat and have already begun to make their mark across the globe.

Instances of state-sponsored cyberwarfare have grown exponentially in the last two decades as

the digital age has reached new heights. Perhaps the most salient example is that of Stuxnet in

2010. Though no conclusions can be drawn, it has been speculated that either Israel or the United

States (or both) successfully wrote a computer worm that mainly targeted Iranian nuclear

facilities. It is speculated that up to 1000 centrifuges vital to uranium enrichment were destroyed

at the Natanz facility. Though it spread to targets beyond its presumed intended scope, the worm

was highly precise and sophisticated, suggesting state involvement.

Military and political observers also speculate that state resources were behind the 2007 attack

on Estonian infrastructure, government agencies, and news organizations. The attack came at a

point of heightened tensions between Tallinn and Moscow, and many thought that the attack

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could have been retaliation for Estonia’s plan to relocate the symbolic Bronze Soldier of Tallinn

from the city center. Nevertheless, only tenuous connections between the attack and the Russian

government have ever been made. Other attacks are thought to have occurred in countries such

as South Korea, Georgia, Japan, and even the United States, among many others. The world has

yet to see large-scale damage inflicted as a result of a cyber attack, but one may lay on the

horizon.

Past Action

Virtually nothing has been done on an international level to address the legal ambiguities

surrounding cyberwarfare. UN General Assembly resolution 68/243 titled “Developments in the

field of information and telecommunications in the context of international security” called for

member states to issue recommendations on how to improve telecommunications security, and

the reports are reflected in UNGA resolution A/69/112. Nevertheless, professionals and

academics affiliated with the NATO Cooperative Cyber Defense Center for Excellence

collaborated to produce the Tallinn Manual, the most comprehensive analysis of international

law as it pertains to cyberwarfare. Though illuminating, it is a nonbinding document that would

need to be enshrined in law to carry any legal weight.

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Questions to Consider

1. What do the terms “cyberwarfare” and “cyber attack” mean? Do any definitions already exist? If not, what should they look like?

2. How has cyber technology been used against another state in the past? How could be used in the future, especially in the context of armed conflict?

3. In what circumstances, if any, might a cyber attack be considered an act of war (casus belli)? When could a state respond to such attack in self-defense pursuant to Article 51 of the UN Charter? Can cyberwarfare violate the “territorial integrity” of another state?

4. In what circumstances might a cyber attack violate the principles of international humanitarian law? Could certain attacks be classified as war crimes? Irrespective of the presence of armed conflict, could a cyber attack potentially be classified as a crime against humanity?

5. Can a non-international armed conflict erupt between two or more actors employing cyberwarfare? How might these conflicts be addressed by the international community while respecting national sovereignty?

6. Should a new treaty that addressed issues relating to cyberwarfare be drafted, or would such an undertaking be unnecessary? What provisions might a future treaty include?

Suggested Resources The Tallinn Manual on the International Law Applicable to Cyber Warfare The Rome State of the International Criminal Court (See articles 7 and 8 for definitions of crimes against humanity and war crimes) Charter of the United Nations (See chapters I, VI, and VII) Bibliography Melzer, Nils. Cyberwarfare and International Law. Rep. N.p.: United Nations Institute for

Disarmament Research, 2011. Web. http://unidir.org/files/publications/pdfs/cyberwarfare-and-international-law-382.pdf

Hathaway, Oona A. and Crootof, Rebecca, “The Law of Cyber-Attack (2012). Faculty

Scholarship Series. Paper 3852. http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4844&context=fss_papers

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Landler, Mark, and John Markoff. "Digital Fears Emerge After Data Siege in Estonia." The New York Times. N.p., 28 May 2007. Web. 09 Aug. 2015.

Sanger, David. "Obama Order Sped Up Wave of Cyberattacks against Iran." The New York

Times. N.p., 1 June 2012. Web. 9 Aug. 2015.

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Topic 2: The Right to Internet Access during Times of War Scope of the Committee The emergence of the internet fundamentally shifted the international human rights landscape.

The right to free speech is no longer limited to paper and ink, nor is the exercise of free

association relegated to town hall meetings. Ideas can be disseminated worldwide at the click of

a button and connections can be made among millions in a matter of nanoseconds. With this in

mind, this committee must consider what form the relationship between the right to free speech

and the internet actually takes. Particularly relevant to DISEC’s mandate is the question of

whether the rights to free speech and internet access (assuming the latter truly exists) may be

abrogated during times of armed conflict.

International Human Rights Law

International human rights law (IHRL) is a set of legal principles that governs the manner in

which governments behave with respect to those within their jurisdiction. As the name suggests,

IHRL applies to all peoples by virtue of their mere humanity. In light of this, one of the most

fundamental principles of IHRL is that of non-discrimination. According to IHL, everyone is

afforded the same rights under the same circumstances. Many times these rights, and the

instances in which they apply, are straightforward. For example, torture is unequivocally and

universally prohibited under IHRL. The right to free speech, however, becomes more opaque

once the variable of armed conflict is introduced.

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Sources of International Human Rights Law

The Universal Declaration of Human Rights and Customary International Law

IHRL is derived from a multitude of international legal instruments that have guided state

conduct for decades. The most recognized and influential of these documents is the Universal

Declaration of Human Rights (UDHR). Of particular relevance to committee are articles 19 and

20 of the Declaration, which detail the rights to free expression and association respectively.

Though it is not a binding treaty, this product of Eleanor Roosevelt’s labors does reflect binding

principles of human rights law due to the elevation of much of its contents to the status of

customary international law (CIL). CIL is formed when two elements are present: state practice

and opinio juris. State practice is the frequent and habitual occurrence of (or restraint from) a

particular norm (e.g. most states do not practice torture). Opinio juris is present when a state

believes a certain norm to be legal or illegal (e.g. a state believes torture violates international

law). A discussion of what principles of the UDHR qualify as CIL could be relevant to the topic

at hand.

The International Covenants

In response to the global need to further codify the UDHR, the international community decided

to draft the International Covenant on Civil and Political Rights (ICCPR), as well as the

International Covenant on Economic, Social, and Cultural Rights (ICESC). Articles 19 and 20

solidified the concept of freedom of expression introduced in the UDHR and presents crucial

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limitations to the exercise of this right. If the right to the internet is viewed as positive—that is,

requiring government action—the ICCPR is a vital instrument in determining the extent of this

right.

However, if the right to the internet is viewed as negative—that is, requiring government

restraint—then the ICESC will be more useful for this committee’s legal analysis. It may be

argued that article 15 of this document, which guarantees the right to “enjoy the benefits of

scientific progress and its applications,” obligates states to provide access to the internet where

possible. At the very least, the pair of these two conventions may require that states not interfere

with access to content over the internet once it has been provided. This committee must discuss

whether this is the case in light of article 19(3)(b) of the ICCPR, which provides a national

security and public order exception to the right to freedom of expression. Either way, this

committee should also focus on whether new international legal instruments are necessary for

incorporating the internet into human rights law. Moreover, it may be that certain precepts of

IHRL (such as the national security exception to free speech) are outdated. These questions are

all within the committee’s purview.

The Egyptian Case

The 2011 Egyptian Revolution serves as the poster child for the power of social media as an

instrument of political change. Public outcry against the Mubarak regime was registered

throughout the internet on websites such as Facebook and Twitter. This phenomenon posed such

a problem to the incumbent government that a relentless crackdown ensued. These websites,

among many others, were blocked and activists were jailed in droves. This harsh response speaks

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to the internet’s power, and its vulnerability. The Egyptian Revolution played a pivotal role

within the Arab Spring, highlighting the necessity of protecting free speech via the internet.

Should states such as Egypt be able to curtail free speech in times of insurrection? Egypt is not

alone in presenting this vexing question.

Past Action

No human rights treaty has directly addressed the issue of internet access and its connection to

free speech. Some international treaties that regulate technical aspects of the internet do exist, but

they have little to do with maintaining a robust human rights framework. In discussing this topic,

delegates will be entering previously uncharted territory. Though they will draw from existing

law and state practice, they must be creative in devising innovative solutions to this complex

problem.

Questions to Consider

1. In what circumstances may the right to free speech and free association be limited by the state?

2. What qualifies as a valid “national security” or “public order” concern with regards to the limiting of free speech?

3. Should IHRL be restructured to reflect stronger free speech protections, especially in times of conflict?

4. What is the relationship between free speech and the internet? 5. Is there a right to internet access? If not, should there be? 6. How might developing states implement a right to internet access? 7. Should the international community adopt a positive right to internet access or a negative

freedom from internet censorship by the government? 8. What sources of international law might speak to free speech and the internet?

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Suggested Resources

The Universal Declaration of Human Rights

The International Covenant on Civil and Political Rights

The International Covenant on Economic, Social, and Cultural Rights

Bibliography

Land, Molly. (2013). Toward an International Law of the Internet. Harvard International Law Journal, 54. Forthcoming.

Segura-Serrano, Antonio. (2006). Internet Regulation and the Role of International Law. In A.

von Brogdandy and R. Wolfrum (Ed.), Max Planck Yearbook of United Nations Law, p. 191-272. Leiden: Koninklijke Brill N.V. (Web)

Land, Molly. (2013). Toward an International Law of the Internet. Harvard International Law

Journal, 54. Forthcoming.