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Article Excerpt
I. BACKGROUND
II. LOAC CONSIDERATIONS A. Distinction Between Combatants and Noncombatants B. Military Necessity C. Proportionality D. Neutrality III. ANALYSIS A. Legally, Does the Network Constitute a Weapon System? B. What Legal Implications Follow from Continued Use of the "Network as a Weapon System" Terminology with Respect to (1) Targeting, (2) Military Manning, (3) Contractors and Other Civilian Portions of the Network, and (4) U.S. Policy on Weapons in Outer Space? 1. Targeting Implications 2. Military Manning Implications 3. Implications for Contractor and Other Civilian Portions of the Network 4. Implications for Weapons in Outer Space IV. CONCLUSION
Communications networks have had a transformational effect on virtually every aspect of modern American life, and modern American warfare is certainly no exception. Currently, what has been referred to by some as the "Information Technology Revolution in Military Affairs" (1) has greatly increased the effectiveness of military command and control and has increased the efficiency and accuracy with which many weapons and weapon systems can be employed. In fact, the importance of networks to developing concepts such as "network-centric warfare" (2) has led some U.S. military communicators to believe that the network is, or will become, in effect, a weapon system unto itself. This reference to the "network as a weapon system" has become a virtual mantra among some of the nation's military professionals. Whether motivated by the desire for a bigger slice of a finite federal budgetary pie, by the allure of a more prominent seat at the "warfighter" table in a military culture that highly values those who directly contribute to the ability to more effectively wage war, or simply by a desire to more forcefully articulate the need to focus greater attention on fundamental infrastructure issues that should be addressed as new technology in warfighting is developed, the reference to the network as a weapon system has become increasingly in vogue. This practice has evolved without significant analysis of the legal implications, especially with regard to those provisions of the law of armed conflict dealing with the development and employment of weapons.
This Article will examine the following questions: (a) Does the network constitute a weapon system? (b) What legal implications follow from continued use of the "network as a weapon system" terminology with respect to (i) targeting, (ii) military manning, (iii) contractors and other civilian portions of the network, and (iv) U.S. policy relating to weapons in outer space? These and related issues are addressed in this Article, which examines the subject primarily from a law of armed conflict (LOAC) perspective. After defining relevant terms, this Article will examine and apply the LOAC principle that combatants be distinguished from noncombatants and the principles of military necessity, proportionality, and neutrality. (3)
This Article concludes that it is currently inaccurate to refer to the network as a "weapon system" and that continuing this practice could potentially influence a developing area of the law inconsistent with U.S. interests. Given that LOAC is unsettled with respect to electronic applications, the practice could lead one to conclude that the restrictions applicable to use of weapon systems--such as the prohibition on direct involvement by civilians in using these systems for their ultimate purpose--should be applied to any network operations. Such continued reference could also foreseeably result in enemy attempts to justify intentional targeting of nonmilitary personnel and assets that are not in fact contributing to the war effort.
I. BACKGROUND
The "network as a weapon system" terminology, as used by the Air Force and the other Services, can be traced back to at least the year 2000, when that phrase was used by Lieutenant General William J. Donahue (USAF) in a January 2000 Intercom article. (4) Since that time, the phrase has been more frequently used by military communicators both in their respective Services and in joint environments. (5) Moreover, companies in the defense contracting community now are frequently referring to the "network" and "information warfare" in the same manner. (6)
Consistent with this development in terminology, there has been further development in the concept of network-centric warfare, a concept that has been the cornerstone of an ongoing DOD transformational effort (7) dating back at least a decade. The concept posits that "information superiority is [the] essential ingredient of success" in warfare (8) and emphasizes that combat power can be generated from the "effective linking or networking of the warfighting enterprise." (9) Network-centric warfare is "characterized by the ability of geographically dispersed forces ... to create a high level of shared battlespace awareness that can be exploited ... to achieve commanders'" intentions. (10)The concept includes a "future for remote-control combat, where land battles may be fought with ... unmanned aircraft and missiles that 'talk' amongst themselves to coordinate attacks on fast-moving enemy forces." (11) It is hoped that use of the network-centric approach will reduce dependence on "stove-piped" legacy systems and will improve upon the sharing of critical intelligence information among warfighters. (12)
DOD expects that network-centric warfare capabilities will "enhance the capability of the Joint force commander to understand the [battlefield] situation, determine the effects desired, select a course of action and the forces to execute it, accurately assess the effects of that action, and reengage as necessary while minimizing collateral damage." (13) It is fully expected that "net-centric warfare" will increase in importance in the immediate years ahead. (14) Major General Dale Meyrose (USAF) stated that he believes "net-centricity is the future;" he believes that it "will play a major role in how U.S. armed forces fight abroad as well as protect themselves at home," and it will help to "replace the existing satellite constellation with an [Internet Protocol]-based network." (15) Twenty-eight companies, including Lockheed Martin, Boeing and Northrop Grumman, have recently formed the Network Centric Industry Consortium, which will provide recommendations on which technical standards and architectures will best allow participation in a global network environment. (16)
Major efforts are already underway to develop specific systems that will upgrade battlefield capability. For example, a large effort is underway to build a secure network based on Internet protocol, called the "Global Information Grid" (GIG), that could send classified intelligence and stratagems instantly to the U.S. military in the battlefield, making them a faster, fiercer force against the enemy. (17) Such a network would allow, for example, "marines in a Humvee, in a faraway land, in the middle of a rainstorm, to open up their laptops, request imagery" from a reconnaissance satellite, and "get it downloaded within seconds." (18) Numerous efforts at building other specific systems are also underway. For example, in May 2004, "a Raytheon-Lockheed Martin joint venture was awarded a $1 billion contract to develop the Non Line-of-Sight Launch System ... a system [consisting] of two types of small missiles" that could be fired remotely. (19) Data links would provide two-way communications between the missiles and military commanders in the
battlefield, while satellite technology combined with advanced guidance and targeting systems would allow quick retargeting. (20)
Despite such ambitious programs, most of the U.S. military's communications today are highly integrated with and dependent upon the nation's commercial communications infrastructure. (21) Approximately "[ninety-five percent] of the telecommunications of the [DOD] travel through the Public Switched Network," and a significant amount of both the operation and maintenance of military-owned network segments is currently handled by civilians on a contracted-out basis. (22) Further, the military community is becoming increasingly electronically interconnected. In recent years, the armed forces and civilian users have become increasingly dependent upon the same commercial space systems. (23) Because the U.S. military's own dedicated satellite communications systems cannot handle its increasing demands, the military has leased, and plans to continue leasing, commercial satellite communications capacity. (24) For instance, "DOD uses leased Intelsat circuits to supplement its capabilities; in fact, some DOD satellite command and control facilities routinely use Intelsat to relay data from its satellites." (25) Moreover, approximately "[sixty percent] of the satellite communications [requirements] of the U.S. military are provided by commercial entities." (26)
II. LOAC CONSIDERATIONS
LOAC...
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