“High technology warfare and the rules of war: New challenges and new possibilities”

Eirik Øwre Thorshaug, state secretary (Norwegian Labour Party)
Opening remarks for the seminar
Oslo, 25 October 2012

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Dear friends,

I am honored to have the opportunity to give some opening remarks for this important and up-to-date seminar.

Henry Dunant did not know much about smartphones and drones at the time of the battle of Solferino. Neither did the Swiss government at the time have problems with targeted cyber operations against vital infrastructure.

As president Barack Obama mentioned in the debate this week: there are fewer horses in the American military than it used to be.

The means and methods in war are constantly changing.

We need to make sure that the rules of war are updated to meet these new challenges.

The challenges of cyber and unmanned aerial vehicles (UAV) or drones are issues of high relevance both to the Ministry of Defence and the Armed Forces, as well as to international and national organizations and civil society at large. I am particularly glad to see that so highly qualified and dedicated lecturers have found their way here. A seminar's success is unquestionably defined by the quality of the lectures and the interventions from the participants – here today.

Cyber
The theme "warfare in cyber space" attracts significant attention both in Norway and internationally. The cyber attack on governmental structures, banks and other institutions in Estonia in May 2007 is one example. Georgia fell victim to a similar information blockage in 2010. I could go on.

Cyber warfare and related subjects have been given greater attention in the last few years. Based on the international debate on whether there is a need for new law instruments to tackle these new challenges the MOD wrote an international law study called "Cyber warfare and international law" in 2011. One of the main questions asked in the study is whether the rules concerning the use of force apply to attacks in the cyber space? First do cyber attacks constitute a violation of the UN Charter article 2(4)? Second, will such an attack activate a nation's inherent right to self-defense according to the UN Charter article 51?

Furthermore we discuss whether, and if so how the Law of Armed Conflict regulates the means and methods of cyber warfare.

A cyber attack is defined as an attack on the information-infrastructure of a state with the aim to cause injuries or serious disruption. A special feature of cyber attacks is that they normally cause relatively little or no direct physical injuries, the immediate consequences and the indirect injuries may however still be substantial.

The ban on the use of force according to the UN Charter
Article 2 (4) of the UN Charter provides a clearly defined prohibition on the use of force. A state shall not use force or even threaten to use force against another state. The question is whether the term "use of force" only encompasses the use of kinetic methods or if it also encompasses cyber attacks. There are a number of reasons which support the notion that the ban on the use of force must encompass more than kinetic use of force. First, the term "use of force" must be interpreted in light of the development that has taken place since the entry into force of the UN Charter in 1945 and especially in the recent years. The means and methods of warfare have developed substantially since the Second World War. This should and must be reflected in the application of legal standards and documents such as the UN Charter. Second, it is a fact that article 2 (4) does not only ban kinetic use of force and weapons but also biological, chemical and nuclear weapons. Thirdly, numerous states consider cyber capabilities to constitute a means and method of warfare in the same way as other types of weapons. Last but not least, when considering what "use of force" implies, it is important to look at the potential damage cyber means and methods could cause and not only how it is classified. There is no doubt that an attack carried out with the use of cyber means and methods could cause substantial damage.

For something to be regarded as an attack in accordance with international law the act must in a relatively direct manner cause substantial injuries to human-beings and substantial damages to property. Enemy cyber campaigns will not necessary cause such direct injury, with exception of direct harm to computer hardware and software. Enemy cyber campaigns can however cause substantial indirect injuries. The classic example is the use of a malicious code with the result of cutting off an air-control tower so that a number of aircraft crash.

A special feature of cyber warfare is that acts which do not inflict substantial injuries on a human-being or substantial damage to private property but are directed against vital governmental institutions and functions, such as a state's financial centres, means of communication and electrical supply lines are covered by the ban on use of force according to article 2 (4).

Self-defense
A breach of article 2 (4) does not automatically and immediately evoke a state's right to self-defense. In accordance with article 51 of the UN Charter an "armed attack" must first occur. An "armed attack" exists if the attack causes substantial injuries on persons and properties. However, in situations with cyber attacks, where the consequences on the society at large are substantial, even though the direct physical injuries are not excessive, or even non-existing, could the right to self-defense even exist?

Whether the right to self-defense has been evoked, will depend on a case-by-case evaluation, where the objects and interests which have been attacked and the impacts of the attack must be taken into account. Simultaneously the right to self-defense is not unlimited. I will not elaborate further on these matters here. I will leave this to the experts as I am sure you will touch upon this topic again later today.

Cyber and the Law of Armed Conflict
Currently there are no specific rules which directly regulate cyber warfare. That does not mean that we operate in a lacuna, on the contrary. From my point of view it is important to state that the four Geneva Conventions and their Additional Protocols apply to cyber warfare as to any other type of warfare.

Is there a requirement for new legislation on cyber warfare?

Many have advocated the need for new rules and regulations concerning cyber warfare. There is no doubt that cyber warfare represent complicated challenges when it comes to the interpretation and application of the Law of Armed Conflict. Cyber however does not represent anything new. The same could be said of other new means and methods of warfare. An important reason for not starting a new international legislation process is that we might end up with a prolonged and complex process with "weaker" treaty obligations than the existing ones, and with just as many ambiguities. The Norwegian position regarding this matter is subsequently that focus must be paid on already existing norms and how these can be applied to cyber warfare.

Unmanned aerial vehicles (UAV) – drones
Let me touch upon drones and the Law of Armed Conflict. A drone is the popular term for a remote controlled aircraft. The use of drones in ongoing conflicts has been heavily criticized. One suggestion is that the threshold for using armed force has been reduced through the use of drones. The fact that drones can be operated from a long distance without the risk of losing own personnel has been highlighted as one of the main reasons for this suggested lowered threshold. It has also been argued that the use of drones in ongoing conflicts has raised the level of conflict and resulted in an increase of civilian casualties. Subsequently, the question has been raised as to whether international law in a proper way can regulate this development.

In such a debate it is important to separate between drones as a weapon launching platform and a means of surveillance. Drones were at the outset used merely for the latter purpose and did not carry weapons. Most of today's drones are still used for surveillance purposes only. These drones are efficient tools for getting a better view and understanding of the situation on the ground.

Based on our own recent experiences from Operation Unified Protector in Libya drones used for surveillance were important to ensure that the bombing of military targets were carried out in accordance with the Law of Armed Conflict. Drones proved instrumental in providing critical, up to date and detailed information of the situation on the ground. Improving considerably the targeting process. Through continuous surveillance it was possible to - with a higher degree of certainty establish whether there were civilians present on the target or close to the target or not. I have been told that a mission would be aborted if civilians were present or were moving in towards the target. The drones created a situational awareness which would not have been possible using only manned aircraft.

From a Norwegian point of view it is important to state that the Law of Armed Conflict applies. Regardless to all means and methods of warfare, including the use of drones. All use of force shall furthermore be regulated in politically authorized Rules of Engagement. The threshold for the use of military force should not be lowered even if the risk of losing our own personnel is reduced.

I said it is important to separate between the two types of drones. As of today Norway does not possess drones that carry weapons. But even if we did, and this is important, this would not be a breach of international law. It worth to note that the missiles carried by drones, such as the Hellfire and Brimstone missiles, even have a higher degree of precision and a more limited blast effect compared to many other missiles carried by for example a jet fighter. The challenge is thus not the drones nor the weapons on board, but the way the drones are being used in some conflicts of today.

I want to underline in particular: The use of drones in an armed conflict does not differ from the use of any other military means or methods of combat such as a manned aircraft. Rather a drone is just another tool in the armed forces' "tool box". Command and control of the operation, the targeting process and the procedures and orders on weapon release are identical no matter what weapon is being used. Human-beings operate the aircraft - manned or unmanned - and human-beings make all the decisions related to the use of weapons. Human beeings, are responsible to uphold the rules of war.

The use of drones has also spurred important ethical debates. Does the physical distance, which could be thousands of miles, between the pilot and the ones making the decision on the release of weapons and the area of operations result in a loss of respect for human life? The following question has also been raised in this debate: If the use of armed force does not represent a risk of loss of own personnel will this make it easier somehow to use armed force? These are important questions that should be given a lot of thought and good responses. I look forward to hearing the outcome of today's discussions.

Closing remarks
In closing, I would like to take the opportunity to emphasize the value of the co-operation between the Ministry of Defense, the Norwegian Armed Forces and the Norwegian Red Cross. This co-operation has been strengthened further during the last few years, amongst others due to this annual seminar which started in 2004.

The Norwegian Red Cross interacts with the Norwegian Armed Forces at different levels. We truly appreciate this co-operation, which I hope will prosper even further in the future.

I wish you a successful seminar. I look forward to hearing about the main points of your discussions and conclusions at a later stage. Thank you very much.