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SPECIAL POLITICAL AND DECOLONIZATION COMMITTE

Esteemed Delegates,

It is a pleasure to welcome you all to the UFRGSMUN 2008 Special Political and

Decolonization Committee. SPECPOL has been simulated in UFRGSMUN for four years

being one of UFRGSMUN’s most successful committees. To keep the tradition, we have been

working very hard through the last year in order to afford you high level discussions from the

4th to 8th of November. The topics you are about to read were selected with the belief that

they might reflect very important issues of the future of the International Relations studies, as

they deal with the influences of non-State actors on the International system.

Our staff is composed by five International Relations students with many interests in

common:

Fernando Petry Saraiva, Director, is an International Relations student at UFRGS and

also a Business Administration student at PUCRS. He first attended to a MUN in 2005, when

he participated at AMUN’s Historical Committee. He went back to Brasília in July 2008 to

represent Australia at United Nations Conference on Trade and Development in the XI

AMUN. Last year, Fernando took part in the Disarmament and International Security

Committee of Harvard WorldMUN. Fernando is an old UFRGSMUN fellow, as he has

participated in all its editions since 2005, being a delegate, Assistant-Director, administrative

staff member and, finally, a committee Director!

Thiago Borne Ferreira, Director, was first involved in MUNs in 2005, when he

participated as a delegate at AMUN’s Historical Committee and then as a SOCHUM delegate

in UFRGSMUN 2005 edition. The amazing experiences he had by that year motivated the 8th

semester International Relations student to join SOCHUM’s staff in UFRGSMUN 2006 as an

Assistant-Director. Last year, he took a step further in his MUN’s life accepting the task to

join the SPECPOL staff as a Director for the first time. In 2007 he also attended to the 10th

AMUN at the Council of the European Union Committee. In 2008, Thiago gathered some

friends to simulate SPECPOL again while assisting the Secretariat as an Under Secretary

General for Academic Affairs. His last MUN experiences entail this years TEMAS-MG and

AMUN.

Ana Júlia Possamai, Assistan-Directot, is an 6th semester International Relations

student at UFRGS and a member of the Strategic and International Relations Center

(NERINT). Today, she is part of the Executive Council of the UFRGS’ International

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Relations Magazine Perspectiva. She first attended to a model in 2006 UFRGSMUN, being

the Malay representative at SOCHUM.

Bruno Walber Viana, Assistant-Director, is a senior under-graduate student of

International Relations at UFRGS who joined the UFRGSMUN staff for the first time in

2008. His MUN experience includes the last three editions of UFRGSMUN. In 2005, he was

Mexico at ILC; in 2006, Syria at UNCTAD, and last year he represented Russia at the UNSC.

In 2007 he also attended to the X AMUN, representing Venezuela at ECOFIN.

Gustavo Gayger Müller, Assistant-Director, is an 8th semester International Relations

Student at UFRGS. He is also a former member of NERINT, and is now attending to the

Political Sciences course in Institut d'Etudes Politiques, in Rennes, France. He attended to the

last three editions of UFRGSMUN, being part of SPECPOL in 2005, representing Mexico, of

the Historic United Nations Security Council in 2006, as Syria, and of the Commission on

Crime Prevention and Criminal Justice in 2007, as Russia.

Even though we did our best to provide you with a comprehensive view of the issues

you are about to discuss, this study guide should be the starting point to your preparation. Use

it as basis for further research and try to search for additional information in different sources.

We hope you enjoy reading this guide and we wish you have a remarkable stay in

Porto Alegre. If you have any doubts, please, do not hesitate to contact one of our staff

members! We are looking forward to meeting you all in November!

Sincerely yours,

Fernando Petry Saraiva

Director

Thiago Borne Ferreira

Director

Ana Júlia Possmai

Assistant-Director

Bruno Walber Vianna

Assistant-Director

Gustavo Gayger Müller

Assistant-Director

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TOPIC AREA A: CYBERTERRORISM AND THE LAW OF CYBER-SPACE

By Thiago Borne Ferreira, Fernando Petry Saraiva ,Ana Júlia Possamai, Bruno Walber

Vianna and Gustavo Gayger Müller

1. HISTORICAL BACKGROUND

“The web of human-readable document is being merged with a web of

machine-understandable data. The potential of the mixture of humans and

machines working together and communicating through the web could be

immense”.

Tim Berners-Lee1

Colarick (2006, p.15) states that “there is no cyberterrorism without terrorism,

period.” It is also correct to say that there is no cyberterrorism without the wide spread of

cyberspace, mainly through the Internet, which has been happening since the late XX

Century. In this sense, the understanding of its impacts and consequences on peoples’ lives

demands the knowledge of how technological advances have produced social changes since

the beginning of the Information Revolution.2

1.2. From Computers Invention to Internet Emergence

In the 1940’s, and on the context of the allied efforts for World War II, Americans and

British secretly started to develop the very first digital computers. The machines filled entire

rooms, weighing a few tons, and served basically to calculate ballistic trajectories or decipher

enemy codes through very rapid calculations for the time. With the end of the war, such

projects became public. By the beginning of the 1950’s, private companies were already

developing their own research programs on the use of computing technologies. The following

decades presented the use of transistors and integrated circuits, which lowered the size and

reduced the costs of computers (COLARIK, 2006).

1 World Wide Web inventor and director of the World Wide Web Consortium. Further information available at: www.w3.org. Last accessed: 21 August 2008. 2 The Information Revolution is considered to be a group of social and economic changes occurred in global society after the introduction of several technological advances, mainly the computer, in daily activities. According to Drucker, “… the real impact of the Information Revolution has not been in the form of ‘information’ at all (…) For instance, there has been practically no change in the way major decisions are made in business or government. But the Information Revolution has routinized traditional processes in an untold number of areas”. More information available at: http://www.theatlantic.com/doc/199910/information-revolution. Last Accessed: 05 September 2008.

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Technological advances presented by the Soviet Union during the Cold War were

sought as a serious threat by the American government. The possibility of a nuclear strike was

at hand and the necessity of spreading its classified documents among different site locations,

in order to avoid the possibility of destruction of full contents of its databases, was perceived

by American authorities. In this sense, in 1957 the American government created the

Advanced Research Projects Agency (ARPA), with the primary objective of developing

research projects on computing technology. The dawn of the Space Age, caused by Sputnik’s

launch in 1957, gave the Soviet Union leadership over the technological race disputed against

the United States. The latter, of course, was willing to regain its former leading position on

the race.3 From 1962 and on, ideas of information sharing between computers through

telephonic network gained strength, based on what was idealized by J.C.R. Licklider as the

“spirit of community”.4 Three years later, in 1965, the efforts taken inside ARPA became

reality when a computer in Massachusetts and another in California were connected through a

regular AT&T’s telephone line. The ARPANET, an early version of the Internet, was then

created.5

Further developments of microprocessors and the first dynamic Random Access

Memories (RAM) resulted in the assembly of the first microcomputers in the early 1970’s,

which made possible computers’ single-person use. Still, these equipments were too

expensive. The release of the International Business Machine’s Personal Computer (IBM-

PC) in 1977 is considered a turning point where companies started large-scale production

focusing on software applications which allowed the wider use of PC’s by people. In the same

year, the invention of the modulator-demodulator (MODEM) for computer use made the easy

transmission of digital data possible. In other words, it became possible for everyone to

communicate through digital networks by plugging the PC into the telephone jack.

3 One of the most important aspects of the Cold War period was the military competition between the Soviet

Union and the United States in the nuclear and space fields. Sponsored by several government programs, both

nations were determined to demonstrate its supremacy within international scenario through the development of

technological capabilities. As a result, a wide range of science fields – varying from astronomy to sociology –

and even daily activities such as driving a car – were benefited by remarkable achievements generated. 4 Joseph Carl Robnett Licklider, known simply as J.C.R. or "Lick" was an American computer scientist, considered one of the most important figures in computer science and general computing history. The idea behind the “spirit of community” was to use computers in order to help people communicate with other people. Further information available at: www.dei.isep.ipp.pt/~acc/docs/arpa--1.html. Last accessed: 13 September 2008. 5 More about the history of the Internet can be found at: http://www.computerhistory.org/. Last accessed: 21 August 2008.

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In the late 1980’s the Internet emerged in its actual format. Sharing digital

information was not an exclusively governmental initiative anymore. As it happened before,

in the 1950s, computing technology became once again available for private users, now

through the form of information sharing. Internet’s popularization was caused by the World

Wide Web (WWW) invention, a system which organizes computer databases or documents

allowing intuitive browsing process. The works on information management of Tim Berners-

Lee – who was working at the European Organization for Nuclear Research in Geneva – in

1989, gave way to the first server, browser and editor. The main characteristic of his system

was the use of Hypertext Transfer Protocol (HTTP)6, responsible for the communication

standards between an end-user and a web site.

The advent of graphical interfaces and the role of commercial interests were

responsible for the Internet’s growth in the early 1990’s (MALERBA, 1999). Both the

number of users and amount of information – represented by the number of web sites –

increased exponentially as computer industry became more aware of “new component

technologies which not only permit the needs of existing users to be met better but also open

up the possibility of designing machines that serve new classes of users whose needs could

not be met using older technology”( MALERBA, 1999).

Lately, much has been discussed about the evolution of the Internet into the so-called

“Web 2.0”. Coined by Tim O’Reilly, this term describes the changes occurred in the last

decade in the way information is presented and how people interact with them. Nowadays,

over 1.4 billion users7 navigate in this global system of interconnected computer networks.

The Internet turned itself into a platform where the end-user has control over his data. Among

the core competencies generated within this context are the architecture of participation, mix

between data sources and data transformation and the harness of collective intelligence8. The

concept, however, is still under debate. According to the founder of the Internet, “Web 2.0 is

of course a piece of jargon, nobody even knows what it means. If Web 2.0 for you is blogs

and wikis, then that is people to people. But that was what the Web was supposed to be all

6 HTTP structure is based on a set of important protocols, mainly the Transmition Control Protocol,and the Internet Protocol (TCP/IP) responsible for addressing and reliable data transport, which had an enourmous success “due to a variety of factors. These include its technical features, such as its routing friendly design and scalability, its historical role as the protocol suite of the Internet, and its open standards and development process, which reduces barriers to acceptance of TCP/IP protocols.” (KOZIEROK , 2005 p.190) 7 More information available at: http://www.internetworldstats.com/stats.htm. Last accessed: 05 September 2008 8 For further information about the concept and consequences of Web 2.0, http://www.oreillynet.com/pub/a/oreilly/tim/news/2005/09/30/what-is-web-20.html. Last accessed: 05 September 2008.

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along. And in fact, you know, this 'Web 2.0,' it means using the standards which have been

produced by all these people working on Web 1.0”.9

1.3. Information Revolution and the Cyberspace Culture

Following World War II, several research programs on technology were conducted

both by the United States and Soviet Union as a result of the Cold War tensions. Rocket

technology development by the Americans using German V-2 missiles10 and Soviet ballistic

missiles tests created a great number of inventions never seen before in human history.

Military expenditure by governments on these kinds of projects led to the creation of

Intercontinental Ballistic Missiles (ICBM´s), lunar landers and space stations. Digital

computers and digital networks – as stated before – were also a result of these initiatives.

Such technological developments had a deep impact over economic, social and

cultural aspects at that time, causing the most remarkable revolution since the change from

manual-labor-based economy into a machine-based manufacturing one occurred in the XVIII

century in Britain. The Information Revolution caused by computers is compared to James

Watts’ steam engine application into the spinning of cotton. The complexities of these events

have been influencing authors until today to analyze different perspectives and possible

consequences for individuals.

Claude Shannon’s article “A Mathematical Theory of Communication” gave the basis

of “information theory”, being able to identify “the fundamental problem of communication is

that of reproducing at one point either exactly or approximately a message selected at another

point” (SHANNON, 1948, p.1). Daniel Bell’s writings on the subject comprised possible

effects of this process of transition to an economy based on provision of services advocating

the emergence of the “post-industrial society”. According to the author “the society that is

usually referred to as ‘post-industrial society’ usually takes shape where and when social

progress is no longer dependent on occasional breakthroughs of experimental science but is

based on the progress of theoretical knowledge. As information and knowledge become an

9 This affirmative was made during a podcast interview for IBM available at: http://www-128.ibm.com/developerworks/podcast/dwi/cm-int082206.txt. Last accessed: 11 September 2008. 10 Used by Germany during World War II, the Vergeltungswaffe 2 (vengeance weapon 2) was the world first ballistic missile and the first rocket to make a sub-orbital spaceflight. After the War, both the United States and Soviet Union were able to develop the technology, into their military projects.

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actual productive force, they emerge as a monopolistic resource with absolutely new qualities

that social production has never before encountered”.11

Marshall Macluhan, in his 1962 book “The Gutenberg Galaxy: The Making of

Typographic Man”, discusses what kinds of changes would result from the use of electronic

media. According to him, “language is metaphor in the sense that it not only stores but

translates experience from one mode into another. Money is the metaphor in the sense that it

stores skill and labour and also translates one skill into another. But the principle of exchange

and translation, or metaphor, is in our rational power to translate all our senses into one

another. We do it every instant of our lives… Our extended senses, tools, technologies,

through the ages, have been closed systems incapable of interplay or collective awareness.

Now, in the electric age, the very instantaneous nature of co-existence among our

technological instruments has created a crisis quite new in human history” (MACLUHAN,

1962, p. 5).

Norbert Wiener’s definition of cybernetics, in 1948, is at the origin of the cyberspace

where “Cybernetics is the science of control theory applied to complex systems… the science

of control or communication, in the animal and the machine” (WHITAKKER, 2004). By that

time, this definition was basically limited to systems science and only later it was seen that

“the important contribution of cybernetics to notions of cyberspace is that this is a complex

system of fields or possibilities that will adapt and change, and redirect in order to continue

functioning, the analogy being to a living organism or multifarious social system”

(WHITAKKER, 2004, p.27). In 1984, the term cyberspace was introduced by William

Gibsons’ cyberpunk novel “Neuromancer”. At that time “part of the success of Gibson’s

novel lays in the fact that he was able to provide expression to the emerging technologies

(personal computers, the Internet, computer graphics and virtual reality) that were beginning

to capture the popular imagination”(WHITAKKER, 2004, p. 21 ).

1.3. Cyberterrorism First Threats

The popularization of the Internet and the growing dependence on new technologies

started to concern both scholars and politicians. The cyberspace opens a new field for illicit

11Further Information available at: http://www.postindustrial.net/content1/show_content.php?table=magazines&lang=russian&id=124. Last Accessed: 11 September 2008.

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acts. In other terms, the digital world has become so present in human relations that it makes

them vulnerable in a whole different way. This concern goes from the appropriation of secret

contents, the propagation of criminal ideologies and alteration of financial data, to the

destruction of necessary infrastructure for a country.

In the cyberspace, as in every sphere of life, some individuals with great power

emerge, and, by consequence, some that will challenge them emerge as well. Here,

dominating the flow of information is the key for power. Information, therefore, is the target

for challenging groups. In the beginning, the most famous actors of the virtual world were

known as Hackers.12 Despite being labeled as criminals, those people saw themselves as

groundbreaking, promoting the advance of the technology industry and exploring its limits.

They created an informal community with their own rules, distinguishing themselves from

those whose acts and intentions challenge the existing laws: the Crackers.13 “Where hacking

crosses the line into cracking is when files are modified or copied without implied

permissions” (COLARIK, 2006, p. 38).

Though constant, few are the crackers’ activities that called attention during this brief

computer history. Besides that, few are also the great proportion cybercrimes planned by

specialized groups and that affected any significant amount of people and data. Even rarer, or

inexistent according to some definitions, are the acts of cyberterrorism. Telling its story,

therefore, is telling the story of a threat that has been interpreted through the last decades,

using as a base some relevant facts that made the danger imminent, demonstrating the

difficulties of administering the cyberspace.

The interest for crimes inside the cyberspace was heightened in the end of the 1980’s,

by the time the world net of computers starts to be seen as breakable and capable of

12 Despite the controversy and ambiguity surrounding the term, for our purposes, a Hacker is “someone with sufficient understanding, skill and experience in the nuances and inner workings of computer systems and networks to be able to wield meaningful power and influence events in cyber-space – even if in concert with others” (JANES, 2008). The popular media usually describes it as someone who attempts to break into computer systems with malicious and often criminal intents. Those are known as “Black Hats”. They “attempt to locate, identify and exploit security gaps or flaws within operating systems, computers and networks in order to gain control of them, steal information, destroy data or orchestrate other illicit activities. Once access to a system has been obtained, a black hat may take measures to establish continued covert access” (JANES, 2008). On the other hand, “White Hats” are ethically opposed to the abuse or misuse of computer systems. Like their counterparts, they actively search for flaws within computer systems and networks, but distinguish themselves by either repairing or patching these vulnerabilities or alerting the administrator of the system or the designer of the software. 13 Crackers are hackers who “circumvent or bypass copyright protection on software and digital media” (JANES, 2008). Sometimes it is done with the intent of releasing the software so it can be used without paying royalties. Other times, cracking is to expose a system's security flaws.

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connecting and paralyzing vital systems and affecting national security (LEWIS, 2002). In the

same context, the John Perry Barlow’s Cyberspace Declaration of Independence, in January

of 1996, is a landmark for showing a place without boundaries, in which the governments

must not interfere and the laws are not applicable.

Still in the 1980’s, one of the first notorious cases of attacks to governmental organs

happened when East Germany spies hacked American computers accessing classified

contents from the Strategic Defense Initiative, like the Star Wars Project (COLARIK, 2006).

Years later, in 1996, crackers associated to the White Supremacy invaded the computers of

the Massachusetts Internet Access Provider and sent several racist messages leaving the

following threat: “You have yet to see true electronic terrorism. This is a promise”

(DENNING, 2000).

In 1998, ethnic Tamil guerillas compromise Sri Lanka’s Embassy with 800 daily e-

mails, with such act being tagged as the very first terrorist attack against a country’s computer

system (DENNING, 2000). From then on, the frequency of attacks has increased and, though

they do not put lives at risk, they have started to generate fear among Internet users due to its

possible implications.

In the following year, North Atlantic Treaty Organization’s (NATO) computers were

filled with e-mails written by activists contrary to the bombing strikes in Kosovo. The interest

on cyberterrorism, grew even further with the risk of the so-called Millennium Bug14 and after

the 9/11 attacks, when terrorists used information technology while planning the strikes

against United States territory (COLARIK, 2006). In 2003, an even more concerning fact

occurred: Romanian crackers managed to invade life support systems which controlled

computers from a research facility in Antarctica putting the life of 58 scientists into risk. It

was the first time that the use of cyberspace with supposed terrorist purposes implied in

physical injuries to individuals.

On April 27 2007, Europe’s most wired country was hit by a paralyzing attack on its

Internet infrastructure that shut down the government ministries websites, news organizations

and major banks. Estonia was hammered by a massive wave of distributed denial of service

14 Also known as the Millennium Virus, Millennium Timebomb or the Y2K Problem (short for “Year 2000 Problem”). By the end of last century, it was speculated that computer programs could stop working or produce false results because they stored years with only two digits. When the century changes, the year 2000 would be represented by 00 and would be interpreted by software as the year 1900, causing chaos in any system which compare dates. As this includes a large proportion of the world’s systems, disaster was predicted by both experts and the media. When January 1, 2000, arrived, however, no major problem was noticed.

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(DDos)15 attacks that might represent the first battle of a new era of cyber-warfare. Until now,

no one knows exactly who was behind the digital siege, but some evidence points to Russian

nationalists furious at the Estonian government’s decision to remove a Soviet war memorial

from its place in Tallinn.16 Rumors suggest that they might have been supported by Russian

Internet security firms interested on showing the need of their services, and maybe even by

the Russian government itself. Moscow, however, denies any awareness of such fact.

In last August, the Russian Federation was once again accused of promoting cyber-

war exercises. During the conflicts in South Ossetia, Georgian websites, including that of the

Ministry of Foreign Affairs, were seriously disrupted by the same kind of DDoS attacks that

thumped Estonia. Again no one was deemed guilty and rumors regarding the nature and the

responsible of such crime spread all over the Internet. The conflict raised, however, a major

implication for the understanding of future warfare: it was the first time in history that a cyber

attack happened as a war was going on.

2. STATEMENT OF THE ISSUE

2.1. The Use of Internet as a Weapon of Mass Disruption

As proposed by Barry Collin in the 1980’s, cyberterrorism is the convergence of

terrorism with cyberspace, where “cyberspace becomes the means of conducting the terrorist

acts” (DENNING, 2007). In this sense, the cyber terrorist “attacks us with one’s and zero’s, at

a place we are most vulnerable: the point at which the physical and virtual worlds converge

(COLLIN, 1997), committing acts of destruction and disruption against digital and even

physical property.

Cyberterrorism differs from the cyber-warfare because it comprises acts performed by

non-State actors, whereas the latter consists of governmental activity. Although the cyber-

space is constantly under assault by non-State actors, most of the attacks cannot be considered

acts of cyberterrorism by two reasons, as pointed out by Professor Denning. First, “the attacks

that are most destructive and generate the most fear are conducted for goals that are neither

15 In a DDoS attack, “hackers use ‘botnets’ – networks of surreptitiously commandeered ‘zombie’ computers – to bombard a target website with bogus requests for information, overwhelming the host computer and forcing the site to shut down” (JANES, 2008). 16 In the spring of 2007, Estonian authorities moved a monument to the Red Army from the center of its capital city to the outskirts of town. Ethnic Russians, who represent about a quarter of Estonia’s population, were incensed by the statue’s treatment and took to the streets in protest. Estonia later blamed Moscow for orchestrating the unrest, and order was restored only after US and European diplomatic interventions.

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political nor social. […] Second, the attacks that have been linked to political and social goal

have generally not been intimidating” (DENNING, 2007) and for that reason are often

referred to as “hacktivism”17. The general conclusion that emerges from this idea is that a

cyber attack should be “sufficiently destructive or disruptive to generate fear comparable to

that from physical acts of terrorism, and it must be conducted for political and social reasons”

(DENNING, 2007).

The conventional wisdom about terrorists is that they use violence as a way of getting

attention, not as an end in itself. In the words of Brian Jenkins, “terrorists want a lot of people

watching and a lot of people listening and not a lot of people dead” (JENKINS, 1975).

Terrorists want an audience to listen to their claims and demands, and, in the best case, to

become sympathetic to them. Despite its coercive component – to instill fear and to intimidate

–, too much violence risks alienating any possible sympathizers and makes any levels of

action against the terrorists seem justified. Of course it does not mean that violence will not be

used, or that it will be produced in a small-scale, but “any group that seeks to build legitimacy

or public support must commit acts of violence that the public perceives to be proportionate

and justifiable” (TUCKER, 2000). For this reason, cyberterrorism may be an attractive non-

lethal weapon. Furthermore, the information technology plays a crucial role as a means of

communicating a message. It diminishes the amount of violence necessary to spread their

ideas, especially that governments are unable to control all information fluxes on the web.

Terrorist organizations might already be aware of the cyber-warfare opportunity, not

only directly but also through indirect cyber-attacks in order to obtain funds for the

achievement of their objectives, for example. Still, there are some restrains which impede

such organizations to pursue something else than disturbing hacks. According to a study

issued by the Naval Postgraduate School, there are three levels of cyberterror capability

(NELSON, 1999, p.11): simple-unstructured, advanced-structured and complex-coordinated.

Also, “they estimated that it would take a group starting from scratch 2-4 years to reach the

advanced-structured level and 6-10 years to reach the complex-coordinated level”.

(DENNING, 2007, p.4) Terrorists would not be able to explore the cyberspace, as a result,

given that “considerably greater skill would be required to develop software to perform

original and highly damaging attacks against critical infrasctruture” (DENNING, 2007, p.13)

17 The term reflects the convergence of hacking with activism rather than terrorism.

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and terrorists usually lack “the wherewithal and human capital needed to mount a meaningful

operation”(DENNING, 2007, p.4).

2.2 Terrorism Within the Global Information Infrastructure

Although since the end of last century terrorism has been closely related to religious

fundamentalism, in the last few years, the motivations of such acts are much more complex.

Smelser, in his attempt to address the main causes of these collective actions, uses the term

“structural strain” in order to explain that “the presence of deprivation; the presence of fault

lines such as racial and ethic divisions; and ambiguities, anomalies and discontinuities

occasioned by irregular social change.” (SMELSER, 2007, p.14-15) must be taken into

account when analyzing the matter. According to the author, “these three principles should

govern over search for the broadest determining conditions that lead to those group

dissatisfactions that sometimes generate impulses to collective action and, in their respective

forms, may tend toward expressions of violence, including terrorism.” (SMELSER, 2007,

p.16)

As mentioned earlier, considering that one of the main goals of terrorism is to generate

fear and panic through violence, infrastructure appears as one of the main targets for attacks.

As a result, each day we rely more on digital networks as a support for critical infrastructures

such as telecommunications, electrical power grids, oil and gas, water supply, transportation,

banking and finance, emergency services, and essential government services. These are

potential targets for cyberterrorist acts since “the supporting nature of cyberspace makes it a

potential target as a force multiplier when combined with another, future physical

attack.”(COLLARIK, 2006, p.53) Attacks against these infrastructures could lead to bodily

injuries or casualties, to extended power outages or to billion dollars financial losses. Dan

Verton’s book “Black Ice: The Invisible Threat of Cyberterrorism” draws an imaginary

scenario where thousands of computers are gathered to conduct series of attacks against

critical infrastructures. These computers would be “turned into what are known as ‘zombies’-

computers that have been compromised with hidden code that an attacker can use at a latter

date to command the infected computer to attack other computers over the Internet.”

(VERTON, 2003 , p.37)

Long-term consequences of terrorist attacks can be grouped into three main fields:

economic, political and cultural (SMELSER, 2007). Cyberattacks also have much more

chance of spreading economic effects, turning global financial systems into chaos, especially

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because payments systems which are responsible for electronic transactions by large sums of

money worldwide “rely on uninterrupted sources of electric power” (VERTON, 2003, p.47).

A closer look at the post 9/11 political consequences demonstrates the tensions which rise

from the conflict between security and civil rights. Furthermore, the cultural impact it is hard

to measure because it would take several decades to review properly the effects caused within

society core values. Though unlikely to happen, this kind of coordination between physical

and cyber domains among terrorist actions are possible in the years to come, and, “even if our

critical infrastructures are not under imminent threat by terrorists seeking political and social

objectives, they must be protected from harmful attacks conducted for other reasons such as

money, revenge, youthful curiosity, and war” (DENNING, 2007, p.15).

2.3. The Necessity of Regulating Bits and Bytes

The perception that information systems and digital networks are increasingly

vulnerable has been raising questions about the necessity of cyberspace regulation. At present,

according to Ahmed Kamal, “the absence of globally harmonized legislation was turning

cyber-space into an area of ever increasing dangers and worries.” (KAMAL, 2005, p.1) In

addition, as Information Technologies (IT) systems become each day more pervasive in

peoples’ lives, the social implications of cybercrimes start to gain attention of decision-

makers. The intangible aspect of the virtual world makes “a new generation of vandals and

data thugs do not need to have physical contact with the victim. Data is easily copied,

transmitted, modified or destroyed. As a result, the scene or crime is a particularly difficult

one: there are no fingerprints or traces” (GELBSTEIN 2002, p.8) It is important to consider

that the cyberspace is much larger than the Internet. As the picture graphic below indicates, it

is a vast domain which comprises several human activities.

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Technological advances have changed and influenced international society in a way

that international law is not capable of adapting. New technologies allow the development of

new activities and practices which, by consequence, manage to blur even more possible

primary targets and criminals modus operandi. The influence of digitalization on military

doctrine resulted in the concept of Information Warfare, which is defined as “any action to

deny, exploit, corrupt, or destroy the enemy’s information and its functions; protecting

ourselves against those actions; and exploiting our own military information

functions”(GREENBERG, 1998, p.7). As mentioned by Lawrence Greenberg, “information

warfare challenges international law in three primary ways. First, the sort of intangible

damage that such attacks may cause may be analytically different from the physical damage

caused by traditional warfare (…) Second, the ability of signals to travel across international

15

networks or through the atmosphere as radio waves challenges the concept of national,

territorial sovereignty (…) Third, just as information warfare attacks may be difficult to

define as “peace” or “war”, it may be hard to define their targets as military (and thus

generally legitimate targets) or civilian (generally forbidden)”(GREENBERG, 1998, p.10).

The ownership structure within the cyberspace is similar to maritime transportation

where “all ports and their facilities have owner, and so do all ships. Each item of cargo on a

ship also has an owner. There is one difference however: the international community

developed and adopted the Law of the Seas.”(GELBSTEIN 2002, p.10) Responsibility over

cyber domains relies upon several groups (World Wide Web Consortium, Internet

Engineering Task Force, etc.), since no legal framework establishes an international

regulation on the matter. This situation benefits the occurrence of cybercrimes, which are

defined as “computer-mediated activities which are illegal or considered illicit by certain

parties and which can be conducted through global electronic networks” (OZERN, 2005,

p.15)

As mentioned before, there is no legal framework related to cyberspace activities until

now. Matters such as concepts’ definition, forms of prevention, law enforcement, and private-

public cooperation, lack the necessary understanding from all interested parties. For example,

anonymity preserves user identity giving him liberty of speech but at the same time permits

the non-identification of anti-social behavior. Data protection in the sense of information

privacy is also one of the issues to be defined, as “privacy protection is frequently seen as a

way of drawing the line at how far society can intrude into an individual’s personal

affairs”.(KAMAL, 2003, p.32) Policy-makers must also bear in mind that “international

understanding and domestic implementation of measures that are required to enhance the

security of information systems and facilitate the international exchange of data and

commerce are important” (KAMAL, 2003, p.38)

3. PREVIOUS INTERNATIONAL ACTIONS

Until this moment, “there is no international legal response to cyberspace threats or

crimes” (SZCZERBA, 2006). Given the inexistence of a framework which comprises the

aspects involved in the cyberspace such as right to access, data protection and identity theft,

16

what has been accomplished are several national initiatives aiming mostly at the protection of

its citizens excluding the global aspects of the problem.

The United Nations Institute for Training and Research (UNITAR) has published the

book “Law of Cyber-Space - An Invitation to the Table of Negotiations” as an attempt to

address the bases of an international convention on the subject. It is recognized that “the

challenge is far greater. The speed of change is phenomenal, the dangers affect all countries

without exception, new shoals and icebergs appear every day, and global responses are

sporadic or nonexistent” (KAMAL, 2005, p.5). Governments, private sector and civil society

are called upon the discussion, since “All three stakeholders must be full participants in the

exercise” (KAMAL, 2005, p.5).

In 1998, the European Commission launched a study called COMCRIME, which

focused on the security of information that circulates in the cyberspace. In the following year,

the European Parliament formulated an action plan to fight illegalities in the virtual sphere. In

2004 was created the European Network and Information Security Agency, ENISA, to

strengthen the coordination of the actions to prevent cybercrimes and to protect the privacy of

information. Therein, once the principles of circulation and liberty of speech of information

are protected, EU members defend that mechanisms of combat against crimes in the

cyberspace are created, with cooperation and acceptance of the involved and threatened ones,

being them public or private actors.

The Council of Europe, Canada, Japan, South Africa and the United States have

recently implemented the Convention on Cybercrime. It is the first international treaty to

“pursue a common criminal policy aimed at the protection of society against cybercrime,

especially by adopting appropriate legislation and fostering international co-operation” (EU,

2001). Following this document, two initiatives have aroused: the Project against Cybercrime,

which aims to the promotion of the Convention by assisting national legislators to create the

appropriate conditions for its implementation and the Convention Committee, which provides

regular consultations to the parties.

The North Atlantic Treaty Organization (NATO) has established early this year a

Cooperative Cyber Defence (CCD) Center of Excelence (COE) in Tallinn, Estonia. Part of the

Allied Comand Transformation initiative in order to counter cybercrime activities the COE

works together with the organization’s aim on the matter of cyber threats. It follows the

Bucharest Summit Declaration, which stated the necessity for “NATO and nations to protect

key information systems in accordance with their respective responsibilities; share best

17

practices; and provide a capability to assist Allied nations, upon request, to counter a cyber

attack” (NATO, 2008).

The International Criminal Police Organization (INTERPOL) has developed several

global initiatives in order to fight cybercrimes among its member countries. INTERPOL

Working Parties on IT Crime, Training and Operational Standards Initiative, National Central

References Points Network and the International Cybercrime Conference are among them.

The use of I-24/7 communications system as well, a global police network which permits

worldwide information sharing and analysis, allows operational co-operation, exchange of

information and the coordination of INTERPOL’s responses to threats such as attacks against

data systems, financial frauds and child pornography distribution. From May 20 to 23 of the

current year was created the International Multilateral Partnership Against Cybercrime

(IMPACT) in Kuala Lumpur, Malasya. It is a public-private initiative which gathers

government representatives, Information Technology industry members and the academic

community, as much of the human resources in this field are not in government-related

functions. Taking into account the non-conventional approach needed to combat cyber threats,

four main initiatives were defined: a center for global response, a center for policy and

international cooperation, a center for training and skills development and a center for

security assurance and research.

4. BLOC POSITIONS

The European Union (EU) has already revealed its concerns regarding cyberterrorism

and threats to infrastructure through the systematic publication of documents and through the

creation of different institutions (OZERN, 2005). Among these efforts, the EU has prepared,

in 1998, a study called COMCRIME, which focused on security of information infrastructures

and combating computer-related crime. During the following year, the European Parliament

and the Council of the EU adopted an action plan on promoting safer use of internet by

combating illegal and harmful content on global networks. In 2001, a document entitled

“Network and Information Security: Proposal for a European Policy Approach” was prepared

by the Cybercrime European Commission. It contained some key conditions that should be

followed in order to successfully respond to cybercrime and information infrastructure

vulnerabilities.

18

Another significant effort made by the EU is the “eEurope 2005 Action Plan”, which was

approved by the European Council in June 2002. Focusing on the protection of information

infrastructure it stresses the importance of ensuring the appropriate security of networks and

the information systems transmitted through them for individuals, business, administrations

and other organizations.

The creation of the European Network and Information Security Agency (ENISA) is

another important effort taken by the EU with regard to information and infrastructure

protection. ENISA intends to facilitate and intensify European coordination in the area of

information security, providing the highest security of the information infrastructure systems

for the Members, as well as to create a common understanding of information security among

the member states in the EU.

Some national efforts have already been taken as well. The United Kingdom established

the National Infrastructure Security Coordination Center (NISCC) in 1999, in order to

respond to possible threats against the critical infrastructures. There are two other important

entities within the NISCC: the United Kingdom Computer Emergency Response Team

(known as UNIRAS), and the Electronic Attack Response Group (EARG). While the first

main function is to receive reports of major electronic attack incidents, threats, new

vulnerabilities and countermeasures from its government, international, and customer base

and other commercial sources, EARG mobilizes the government’s technical, security and

emergency response resources to respond to serious electronic attack incidents.

Telecommunications, energy, financial, central government, transport, emergency services,

water and sewage, and health services are identified as the critical national infrastructures by

the British government. The Regulation of Investigatory Powers Act from 2000 (RIPA)

provides for and regulates investigative powers by a variety of public authorities to respond to

changes in technology, in particular, the Internet. Its second part focuses on national security

and terrorism coming from the web, and crime prevention, turning RIPA in one of the most

useful documents to law enforcement in analyzing Internet interceptions.

During their Fifth Ministerial Meeting on Telecommunications and Information Industry,

members from the Asia Pacific Economic Cooperation (APEC), including Australia, Japan

and South Korea, declared the need to promote the development of advanced, secure and

reliable information infrastructures and expressed their commitment to improve the

multilateral and bilateral cooperation in the APEC region in developing telecommunications

regulatory policies, and information and network security. They also made clear that it is very

19

important to establish a legal basis to address the criminal misuse of information technologies

and law enforcement cooperation in combating that misuse (APEC, 2002).

China maintains a rigid control of the content that circulates in its digital net, keeping

the access to sites and information considered inappropriate for its citizens restricted. The

country is contrary to any external mediation that limits its autonomy to deal with the

question, but at the same time, it is accused of negligence on what regards to cyberattacks that

depart from its domains against India, the Unites States and Germany. Accusations of Chinese

cyber-meddling reached a crescendo in June 2007, when, according to the Financial Times,

hackers broke into a Pentagon network that serves the Office of the Secretary of Defense,

briefly shutting it down (SEVASTOPULO, 2007). Chinese electronic espionage has also been

suspected against British companies, like Rolls Royce, as well as government agencies in

France, South Korea, and Taiwan. China denies the accusations, while Western targets

continue to accuse the Chinese of ratcheting up their cyber attack capabilities. Evidence

points out, however, to the existence of cyber-warfare units within the Chinese People's

Liberation Army (PLA) that might become a threat some countries’ national security (JANES,

2008).

To the same effect, the Russian Federation is accused by Estonia and the

international press of having launched attacks that hit many Estonian websites in April 2007.

Russia, however, is contrary to any terrorist practices and moreover, it alleges that even the

Baltic State cannot prove that the attacks have been conceived by the Kremlin. In this sense,

both China and Russia argue that any attacks originating from IP addresses inside their

countries have been directed by rogue citizens, not their governments.

By its turn, Estonia defends, together with its closer neighbors, a strong international

architecture to prevent and fight against cyberterrorism. Thus, the country demands stronger

actions from the international community, especially inside NATO and the EU. Since 2003,

Estonia counts on the Computer Emergency Response Team to deal with threats posed to its

national nets. Recently, the country has launched a Cyber Security Strategy, seeking “to

reduce the inherent vulnerabilities of cyberspace in the nation as a whole” (ESTONIAN

MINISTRY OF DEFENCE, 2008).

The United States is one of the leading countries with respect to taking necessary

measures to respond to threats coming from cyberspace. Especially since the terrorist attacks

on September 11, 2001, both the US and the rest of the world had increased their efforts

towards defending against the threats of terrorism, in particular, in the realm of cyberspace

20

(LAWSON, 2002). Being a country with a strong linkage between infrastructure and the

cyberspace, the United States possesses one of the more advanced legislations to deal with

attacks within the Internet. In this sense, the President’s Critical Infrastructure Protection

Board formed in 1996 provided a significant amount of information and research specifically

focusing on different aspects of critical infrastructures. It showed the willingness to identify

the vulnerabilities of the country stemming from its critical infrastructures. Still in 1996, the

former American President Bill Clinton announced the establishment of the President's

Commission on Critical Infrastructure Protection (PCCIP). The Commission had the task to

assess the vulnerabilities of the nation’s life support systems. Later, it published a report

based on the study they conducted, identifying eight infrastructures that could be attractive

targets for those intending to harm the US: telecommunications, banking and finance,

electrical power, oil and gas distribution and storage, water supply, transportation, emergency

services, and government services. The report has clearly shown the significance and

importance of the problem, and as a result of that study, former President Clinton issued

Presidential Decision Directives (PPD), which established policymaking and oversight bodies

within the executive branch of the federal government for counterterrorism purposes,

enhancing, thus, response capabilities and protection to the computer-based systems that are

at the heart of America's economy. In 2003, the document “National Strategy to Secure

Cyberspace” was published identifying the major strategic objectives and security priorities to

the US government in order to reduce cyber threats and vulnerabilities.

Along with other Group of Eight (G-8) countries, namely United Kingdom, France,

Germany, Japan, Canada, Italy, and Russia, the US supports the necessity of international

agreements to deal with the threat of cyberterrorism and the improper flow of information that

assists corruption, money laundering and crimes against the financial system. The G-8

members have been meeting since 1975 to discuss issues of importance, including crime and

terrorism, and the information highway. During its 2000 meeting, the Group launched the

Okinawa Charter on Global Information Society18 and indicated its commitment to create

some kind of international cooperation to target cybercrime. Three years later, the Group they

determined once more that the unprecedented necessity of global cooperation to protect

information infrastructures, including computer network and communication systems.

18 Further information available at: http://www.g8.utoronto.ca/summit/2000okinawa/gis.htm. Last accessed: September 11 2008.

21

In most of the Middle Eastern countries, cyberterrorism is not a major concern due to

the lack of technology and information available. Although some countries impose

restrictions to the content their citizens might have access to, awareness towards the threat are

expected to raise once infrastructure and public services are more widely available.

Nevertheless, information security experts assert that some of the most vulnerable countries to

cyber attacks are located in the Middle East region: Iran, Kuwait, United Arab Emirates, the

Kingdom of Saudi Arabia, Egypt and Israel are aimed targets. In the United Arab Emirates,

for instance, hacking has been growing in a way never seen before since 2002. On the other

hand, with the ongoing war on terror, hacking from Middle East countries could be on the

increase. Israel is constantly accused of trying to hack financial institutions in the its neighbor

countries, but computer security services companies refuse to confirm whether any such

attacks of hacking have been successful.

India, feeling itself directly threatened by cyberterrorism, leads countries which are

favorable of international arrangements of cooperation against crimes and attacks on the

cyberspace. Since 2000, with the Information Technology Act, the country possesses a mature

Cyber Law, in accordance with the model of electronic commerce of the United Nations

Commission on International Trade Laws (UNCITRAL). The Act foresees punishment for

crimes committed in the cyberspace. In 2008, India claimed the international community to

join efforts during the World Cyber Security Summit, in Kuala Lumpur, and, together with

other participant countries, like Malaysia, Japan, Australia and Mexico, defended that threats

from the cyberspace are real and dangerous, once there is a relevant connection between

information technologies and vital infrastructures.

Cyberterrorism is not seen as an imminent threat also to most of the Latin American

countries, where fortifying police and other government institutions in order to protect the

civil society is still a challenge. However, many of the current problems faced by these

countries, like drug trafficking and money laundering, might be facilitated once criminals

have access to computing technologies. Brazil is considered both a laboratory for cyber-crime

and also its largest exporter worldwide. Digital crime originating from Brazil includes identity

theft, credit card fraud, and intellectually property violations. Software and proprietary data

copying, piracy, deletion and alteration as well as online vandalism are some of the illicit

methods being increasingly adopted by Brazilian hackers and cyber crime syndicates.

Recently, the Brazilian Senate has approved a new law that intends to create a safer

environment within the web. The regulation foresees some new crimes and strengthen for the

22

sentence of those that already exist, but still do not mention the protection to vital

infrastructure or the existence of cyberterrorism.

5. QUESTIONS TO PONDER

During UFRGSMUN, SPECPOL members are called to set an opinion towards the

proposed topic, reflecting about the following suggested questions and any other relevant

issues:

1. How to define cyberterrorism? How to differentiate it from cyber-warfare and

cybercrime?

2. Is it possible to regulate the cyberspace? What would be the best international

approach in order to do so? Is it possible to develop an international framework

on the matter?

3. How to avoid terrorist organizations, rogue nations and other groups from

attacking vital infrastructures through cyber attacks? How to prevent the same

groups from developing the necessary skills to do so? Is cyberterrorism a real

menace?

4. How to identify and punish the aggressors? Is it possible to suit them

internationally? Who should answer for the acts of cyberterrorists?

6. REFERENCES

Books

ALBERTS, D. Information Age Transformation: Getting to a 21st Century Military. CCRP Publication Series, 2002. Available at: http://www.dodccrp.org/files/Alberts_IAT.pdf

ALBERTS, David. The Unintended Consequences of Information Age Technologies. NDU Press Book, 1996. Available at: http://www.dodccrp.org/files/Alberts_Unintended.pdf

ALBERTS, D. et. al. Understanding Information Age Warfare. CCRP Publication Series, 2001. Available at: http://www.dodccrp.org/files/Alberts_UIAW.pdf

ALBERTS, D. PAPP, D. The Information Age: An Anthology of its Impacts and Consequences. CCRP Publication Series, 1997. Available at: http://www.dodccrp.org/files/Alberts_Anthology_I.pdf

23

ALBERTS, D. PAPP, D. Information Age Anthology Volume II: National Security Implications of the Information Age. CCRP Publication Series, 2000. Available at: http://www.dodccrp.org/files/Alberts_Anthology_II.pdf

ALBERTS, D. PAPP, D. Information Age Anthology Volume III: The Information Age Military. CCRP Publication Series, 2001. Available at: http://www.dodccrp.org/files/Alberts_Anthology_III.pdf

COLARIK, Andrew M. Cyber Terrorism: Political and Economic Implications. Idea Group Publishing. 2006.

GELBSTEIN, E. KAMAL, A. Information Insecurity: A survival guide to the uncharted territories of cyber-threats and cyber-security. United Nations Institute for Training and Research. New York, 2002. Available at: http://www.itu.int/wsis/docs/background/themes/security/information_insecurity_2ed.pdf.

KAMAL, Ahmed. The Law of Cyber-Space: An Invitation to the Table of Negotiations. United Nations Institute for Training and Research. Geneva, 2005. Available at: http://www.unitar.org/documents/thelawofcyberspace.pdf

KOZIEROK, C.M. The TCP/IP Guide. Version 3.0, 2005.

LALLANA, E. The Information Age. e-ASEAN Task Force/UNDP-APDIP, 2003.

LEVY, S. Hackers Heroes Of The Computer Revolution. Dell Publishing. New York, 1994.

MACLUHAN, Marshall. The Gutemberg Galaxy: The Making of Typographic Man. University of Toronto Press, 1962.

MOFFAT, J. Complexity Theory and Network Centric Warfare. CCRP Publication Series, 2003. Available at: http://www.dodccrp.org/files/Moffat_Complexity.pdf

NELSON, Bill et. al. Cyberterror Prospects and Implications. Monterrey, CA: Center for the Study of Terrorism and Irregular Warfare, 1999. Available at: http://www.nps.edu/Academics/Centers/CTIW/files/Cyberterror%20Prospects%20and%20Implications.pdf

OZEREN, S. Global Response to Cyberterrorism and Cybercrime: A Matrix for International Cooperation and Vulnerability Assessment. University of Texas, 2005. Available at: http://digital.library.unt.edu/permalink/meta-dc-4847:1

POTTS, David (Ed.) The Big Issue: Command and Combat in the Information Age. CCRP Publication Series, 2003. Available at: http://www.dodccrp.org/files/Potts_Big_Issue.pdf

SHERIDAN, W.P. How to Think Like a Knowledge Worker. UNIPAN, 2008. Available at: http://unpan1.un.org/intradoc/groups/public/documents/unpan/unpan031277.pdf

SMELSER, N.J. The Faces of Terrorism: Social and Psychological Dimensions. Princeton University Press, 2007.

UNITED NATIONS. Countering Terrorism Through International Cooperation. Italy, 2000.

VASSILATOS, Gerry. Secrets of Cold War Technology: Projects Haarp and beyond. Advanced Unlimited Press, 2000.

VERTON, Dan. Black Ice: The Invisible Threat of Cyber-Terrorism. MacGraw-Hill/Osborne. 2003.

WHITE HOUSE, The. The National Strategy for the Physical Protection of Critical Infrastructures and Key Assets. Washington, 2003. Available at: http://www.whitehouse.gov/pcipb/physical_strategy.pdf

WHITE HOUSE, The. The National Strategy to Secure Cyberspace. Washington, 2003. Available at: http://www.whitehouse.gov/pcipb/cyberspace_strategy.pdf

WHITTAKER, J. The Cyberspace Handbook. Routledge: London, 2004.

Articles and Documents

COFFMAN, K. ODLYZKO, A. The Size and Growth Rate of The Internet. AT&T Labs, 1998. Available at: http://www.dtc.umn.edu/~odlyzko/doc/internet.size.pdf Last Accessed: 11 September 2008.

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COLLIN, Barry C. The Future of Cyberterrorism: Where the Physical and Virtual Worlds Converge. 11th Annual International Symposium on Criminal Justice Issues, 1997. Available at: http://afgen.com/terrorism1.html Last Accessed: 11 September 2008.

COUNCIL OF EUROPE. Convention on Cybercrime. Budapest, 2001. Available at: http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm Last Accessed: 11 September 2008.

DENNING, Dorothy. A View on Cyberterrorism Five Years Later. In: Himma, K. ed. Internet Security: Hacking, Counterhacking, and Society. Jones and Bartlett Publishers, 2007. Available at: http://www.nps.edu/faculty/dorothydenning/publications/Cyberterror%202006.pdf Last accessed: 11 September 2008.

DENNING, Dorothy E. Cyberterrorism: testimony before the Special Oversight Panel on Terrorism Committee on Armed Services U.S. House of Representatives. Washington DC, 2000. Available at: http://www.cs.georgetown.edu/~denning/infosec/cyberterror.html Last Accessed: 11 September 2008.

DIMMAGIO, Paul et. al. Social Implications of the Internet. Annual Reviews on Sociology. 2001.

DVORAK, J.C. Straightening Out Cloud Computing. Available at: http://www.pcmag.com/article2/0,2817,2329303,00.asp. Last accessed: 11 September 2008.

ESTONIAN MINISTRY OF DEFENCE. Cyber Security Strategy. Available at: http://www.mod.gov.ee/static/sisu/files/Estonian_Cyber_Security_Strategy.pdf. Last accessed: 24 September 2008.

GREEN, Joshua. The Myth of Cyberterrorism: There are many ways terrorists can kill you – computers aren’t one of them. Washington Monthly, 2002. Available at: http://www.washingtonmonthly.com/features/2001/0211.green.html Last Accessed: 11 September 2008.

GREENBERG, L. GOODMAN, S. SOO HOO, K. Information Warfare and International Law. National Defense University Press, 1998. Available at: http://www.dodccrp.org/files/Greenberg_Law.pdf Last Accessed: 11 September 2008.

INOZEMTSEV V.L. The Inevitability of a Post-Industrial World: Concerning the Polarity of Today's World Order. Global FOCUS, Vol. 13, No. 2. P. 60-79 Available at: http://www.postindustrial.net/content1/show_content.php?table=magazines&lang=russian&id=124 Last Accessed: 11 September 2008.

LAWSON, S.M. (2002). Information warfare: An analysis of the threat of cyberterrorism towards the US critical infrastructure. SANS Institute, 2002. Available at: https://www2.sans.org/reading_room/whitepapers/warfare/821.php Last Accessed: 11 September 2008.

LEWIS, James A. Assessing the Risks of Cyber Terrorism, Cyber War and Other Cyber Threats. Washington DC: Center for Strategic and International Studies, 2002. Available at: http://www.csis.org/media/csis/pubs/021101_risks_of_cyberterror.pdf Last Accessed: 11 September 2008.

LIBICKI, M. What Is Information Warfare? Strategic Forum Number 28. May, 1995 Available at: http://www.dodccrp.org/files/Libicki_What_Is.pdf Last Accessed: 11 September 2008.

MALERBA, Franco et. al. ‘History-friendly’ Models of Industry Revolution: The Computer Industry. Industrial and Corporate Change, Volume 8, Number 1. Oxford University Press, 1999.

NATO. NATO opens new centre of excellence on cyber defence. Available at: http://www.nato.int/docu/update/2008/05-may/e0514a.html Last Accessed: 11 September 2008.

POLLIT, M. Cyberterrorism – Fact or Fancy? FBI Laboratory, Washington D.C. Available at: http://www.cs.georgetown.edu/~denning/infosec/pollitt.html Last Accessed: 11 September 2008.

PRICHARD, J. MACDONALD, L. Cyber Terrorism: A Study of the Extent of Converage in Computer Security Textbooks. Smithfield, RI, USA: Journal of Information Technology Education, Volume 3, 2004.

SEGER, A. The Convention on Cybercrime & the question of “cyberterrorism”. Presentation made at IMPACT Summit, Kuala Lumpur, Malasya, 20-22 May 2008. Available at: http://www.impact-alliance.org/downloads/AlexanderSeger%20_TheConventionOnCybercrimeAndTheQuestionOfCyberterrorism.pdf Last Accessed: 11 September 2008.

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SEVASTOPULO, D. Chinese Hacked Into Pentagon. Financial Times, 09/03/2007. Available at:http://www.ft.com/cms/s/0/9dba9ba2-5a3b-11dc-9bcd-0000779fd2ac.html?nclick_check=1 Last Accessed: 11 September 2008

SHANNON, C.E. A Mathematical Theory of Communication. The Bell System Techinical Journal, Vol.27, 1948. Available at: http://plan9.bell-labs.com/cm/ms/what/shannonday/shannon1948.pdf Last Accessed: 11 September 2008.

TUCKER, David. The Future of Armed Resistence: Cyberterror? Mass Destruction? Final Report on a Conference Held May, 15-17,2000 at the University Pantheon-Assas (Paris II) Available at:

http://www.nps.edu/Academics/Centers/CTIW/files/substate_conflict_dynamics.pdf Last Accessed: 11 September 2008.

UNITED NATIONS. The Law of Cyber-Space. Available at: http://www.un.org/Pubs/chronicle/2006/issue1/0106p34.htm Last Accessed: 11 September 2008.

UNITED NATIONS. What the United Nations Can Do? Available at: http://www.un.org/Pubs/chronicle/2003/issue4/0403p31.asp Last Accessed: 11 September 2008.

Movies

BADHAM, John. War Games, 1983.

GILLARD, Stuart. War Games: The Death Code, 2008.

26

TOPIC B: THE USE OF PRIVATE MILITARY COMPANIES AND THE

PRIVATIZATION OF WAR

By Thiago Borne Ferreira, Fernando Petry Saraiva ,Ana Júlia Possamai, Bruno Walber

Vianna and Gustavo Gayger Müller

1. HISTORICAL BACKGROUND

“In the ancient world, the force of law was the force of arms”.

(ROSEN, 2005, p. 63)

Soldiers of fortune, wild geese, hired guns, legionnaires, contract killers, hireling,

condottieri, contractors, corporate warriors or, simply, mercenaries (LANNING, 2005). The

word “mercenary” remains a pejorative term, associated with the hired killers implicated in

coup attempts in Africa in the 1960s and 1970s, and more recently associated with human

rights abuses in post-Cold War conflicts in Eurasia19 and in the Balkans. However, until the

XIX Century, a large part of the armed forces of most European nations was supplied by the

private sector. It was normal for professional soldiers — especially those with technical

expertise, such as artillerymen or siege engineers — to offer their services on the open market

(BEYANI, 2001).

Actually, the first written fragmented records of real combat do depicture the use of

hired soldiers during the construction of the Egyptian Empire, in about 3000 B.C. As Egypt

increased in wealth and power, its citizens preferred to enjoy their richness rather than face

the hardships of the battlefield, while the poor and/or displaced tribes20 were readily available

to fight for money.

Throughout the last millennium B.C. the Greek would become synonymous of

mercenary. During the final years of the Egyptian Empire, the pharaohs added Greek

mercenaries to their ranks, as did their Persian enemies. By the time the two kingdoms met in

the Battle of Pelusium, in 525 B.C., Greek soldiers of fortune dominated both armies. The

Persian victory showed that Greek mercenaries would remain loyal to whoever was paying

19 Eurasia is composed by the geo-political areas of Europe and Asia, being considered a single continent by some scholars. 20 Mainly Sherden (from Shardana, in Anatolia) and Nubians.

27

them, once some who had fought for Egypt defected to Persia. So it was that much of the

famous Battle of Marathon had been between native Greek and Greek mercenaries fighting

for their Persian employers.

Over the next three centuries, Rome expanded its empire to become the largest of its

age, facing formidable foes from both internal and external sources. During the early part of

its expansion, Rome relied on citizen soldiers who came from agricultural regions and

successfully combined the careers of part-time soldier with farming and herding. By the end

of the Second Punic War, however, the situation changed. In 107 B.C., the Roman army was

reorganized from one dependent on citizen militiamen to a full-time professional one.

Soldiers, although they often expressed more loyalty to their commanders and legions than to

Rome and its Senate, were now volunteers who served for a fair wage, being professionals

rather than mercenaries.

Despite Rome’s territorial expansion, and the consequently growth of its army by the

inclusion of professional soldiers from the captured lands, manpower limitations eventually

forced the Romans to hire soldiers of fortune. Thus, the army and its senior leaderships went

through many transitions. The massiveness of the empire, along with disagreements over who

should be in command and how the people should be governed, led to the separation of its

territory into the Eastern Empire, centered in Constantinople, and Western Empire,

headquartered in Rome, in A.D. 395.

By early in the fifth century, neither the Eastern nor Western Empires could depend

entirely on their professional armies. Rome, which once was proud to be the first vast empire

to achieve greatness with limited assistance from hired soldiers, began to recruit mercenaries.

The increased importance of cavalry encouraged the Romans to seek mounted soldiers of

fortune from the Asiatic tribes21, as well as heavy cavalry, experienced with the lance and

pike, from the Germanic tribes22. “The decline of the Western Roman Empire began about the

same time that Rome started employing large numbers of soldiers of fortune” (LANNING,

2005, p.33), although it was not the only cause of Rome’s fall.

The Middle Ages experimented the spread of religions beliefs, the discovery of new

continents, and a continuous environment of warfare with mercenaries playing a significant

21 Specially Huns, Alans, Avars and Bulgars. 22 Like the Goths, Lombards, Vandals, Gepidae, and Heruli. Gaulish infantrymen also joined the Western Empire army, as did Franks and Burgundians.

28

role. After the Battle of Hastings23, regions and cities, with little else to export, began to

specialize in training mercenaries to use specific weapons or teaching them other battle skills.

As so, the Italian cities of Pisa and Genoa started training soldiers armed with crossbows for

hiring. Those Italian crossbowmen joined the ranks of Germanic cavalrymen and Swiss

pikemen as mercenaries known for their combats specialties.

By the fourteenth century, the end of the Hundred Years’ War produced a large

number of unemployed but experienced soldiers. Many of those organized themselves into

free mercenaries companies, containing foot soldiers, archers and cavalrymen. The companies

that made their way to Italy signed their contracts as condottieri24, Italian for “to hire” or “to

contract”. By the same time, Swiss mercenaries became renowned for their skills and loyalty

as special guard units of emperors and military leaders. In order to protect themselves, it was

agreed among the Swiss cantons that each one would train its own militia, which would be

exported for hiring, under the condition that none could fight another in a battle. Swiss

mercenary units were employed by many countries, being the Swiss Guards to the Vatican the

longest-existing mercenaries unit in history, protecting the Pope until present days.

While the Greek and the Swiss were the source of the majority of mercenaries in

Europe and around the Mediterranean, Ireland became the first country to provide men-for-

hire for causes around the world. The Irish soldiers of fortune participated in the combat in

favor of the catholic James II, supported by France, against the English protestant William III,

in 1689.25

During the XVIII Century, soldiers of fortune accounted for half of the English, a third

of the French, two-thirds of the Prussian, and a quarter of the Spanish armies. When

Frederick, the Great, went home to Prussia in 1763 at the conclusion of the Seven Years’ War,

23 In the eleventh century, an army of Viking mercenaries achieved the most influential victory ever attained to date and established control of the British Isles. The English crown dispute featured Harold Godwin (brother-in-law of the King Edward), King Harold of Norway (Harold Godwin’s brother) and William (duke of Normandy and a distant relative of Edward’s) as its central characters. However, it was the Norman mercenaries who played the main role in William’s victory at the Battle of Hastings (1066). 24 Niccolò Machiavelli wrote of the condottieri in detail in and spelled out the pitfalls of relying on those “who served whoever would pay, without disgrace” (MACHIAVELLI, 2001). 25 After the civil treaty which put an end into that conflict, many Irish mercenaries sailed to France, in what became known as “the flight of the wild geese”, an expression that became synonymous for Irish of every generation who have left the Isle to serve as hired soldiers in wars around the world. In France, the wild geese composed the Irish Brigade, which fought under the control of the King Louis XIV against his old enemy, King William of England (1690s), as well as in North America, in defense of Quebec (1759). Soon, the Irish soldiers of fortune joined the Americans when they rebelled against British. And, later, they would fight the American Civil War for both the North and the South (1860s). Irish mercenaries arrived in South America in 1819 and took part in combats in Venezuela, Argentina, Brazil and Chile. The Irish would fight under their own flag just in 1960s, when two battalions served with the United Nations in the Congo.

29

he realized the Germanic states had a great income-producing commodity: creating regiment

of veterans from his army and other young men of the provinces for hiring out for profit

wages. Frederick II was from the principality of Hesse-Cassel, which provided the bulk of the

troops that would fight for British in the American Revolutionary War, and that’s why the

Germanic mercenaries became known as the Hessians.

The French, under other conditions, had themselves been a primary employer since the

Middle Ages. However, they were so just until the massacre of the King Louis XVI’s Swiss

Guard during the revolution in 1792. Sixteen years after the Battle of Waterloo, King Louis

Philippe, conscious that his population was not keen on participating in more combats, started

the newer expansion of the kingdom organizing the French Foreign Legion. It was composed

of Germans, Spaniards, Italians, Belgians and Dutch. Its first task would be in Algeria, where

the hired soldiers were not successful. And so it was that Philippe literally sold the French

Foreign Legion for the Queen Cristina of Spain, who used it to expand her own interest in

North Africa. A second French Foreign Legion was created in 1835.26

Along the same period, a new breed of mercenaries emerged from the remote

mountains of Nepal: the Gurkhas. Early in the nineteenth century, when British decided to

expand their India colony northward into Nepal, they met fierce resistance from the Gurkhas,

the tribe that had united the kingdom. After two years of bloody combat, British realized the

Gurkhas’ strength and invited them to compose their force. As a way of earning an income for

the country, the Nepalese government started exporting its young men, and so it continues

today.27

26 The second French Foreign Legions combated, then, in North Africa; in the Crimea War with Turkey and against Russia (1859); in the Battle of Camerone in Mexico (1860s) – a Napoleon III’s attempt of expanding in America –; in the Franco-Prussian War (1870); when Germany attacked France (1914 and 1940); in Indochina (1950s). The Legion also participated in peacekeeping operations in Chad and Zaire (1970s), as well as under the control of the United Nations in Lebanon (1982), in the former Yugoslavia (1992), in Kampuchea, Somalia and Rwanda (1993-1996), in Central Africa (1997) and Cote d’Ivoire (2003). It also combated in the Gulf War against Iraq (1991). Over the next two decades, the Legion instituted some traditions that continue today: volunteers were not asked about their pasts, nor were they required using their real names, and battalions were constituted of a mix of nationalities, avoiding any loyalty linkage to the native country. If they were asked about their nationality, they should respond: “Legionnaire, sir” (LANNING, 2005). Despite the low pay, harsh discipline, and often dangerous missions, the French Foreign Mission remains today the best known of all soldiers of fortune organizations. 27 The Gurkhas served the British in India, Afghanistan, Malta, Cyprus, Malaya, and Tibet. At the outbreak of World War I, the Nepalese fought for Britain in India, France, Persia, Mesopotamia, Egypt, Palestine, and Salonika. During the World War II, the Nepalese government sent more than manpower to the British, contributing even with funds. After the Indian Independence, 1947, the Tripartite Agreement transferred some Gurkhas regiments directly to the British army. The Nepalese participated in great part of the British operations around the world (Falklands War, Operation Desert Storm), under the name of Gurkha Brigade.

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While the great majority of the soldiers of fortune have practiced their profession

mostly in land, some mercenaries have fought as mariners, and the vessels they sailed became

known as privateers. However, the most important mercenaries that performed out of the land

were the hired pilots. American pilots made part of the French Escadrille Lafayette – before

entering in World War I –, as well as in defense of the Poles, in 1919. When Japan attacked

China in 1937, Madame Chiang Kai-shek, assisting her husband, contracted American pilots

for helping the Chinese, originating the American Volunteer Group (AVG), which fought in

East Asia until the Pearl Harbor happening.

By the late 1950s, after the Vietnamese had defeated the French and their Foreign

League, gaining independence, another combat has started, opposing the Communist North

Vietnamese and their Viet Cong allies (supported by the Soviet Union and by the People’s

Republic of China) and the South Vietnamese (supported by the United States). When in 1964

President Lyndon Johnson called for additional countries to join the Americans in Vietnam –

in an effort known as “more flags request” –, the United Stated did in fact hired Koreans,

Filipinos, and Thais. Although they fought under the command of their own officers and wore

their national uniforms, they were paid to do so by the United States.

Furthermore, the CIA and teams of U.S. Army Special Forces moved into the

highlands of Central Vietnam to recruit the moi people – who were considered barbarians by

the Vietnamese – in order to organize, arm and train the tribesmen into Civilian Irregular

Defense Groups (CIDG). By 1964, there were twenty-one CIDG camps along the western

border of the South Vietnam. Likewise, the Americans also employed mercenaries in

Cambodia and Laos in their efforts to counter the communists.

Simultaneously, the independence fights have turned Africa the major employer of

mercenaries from around the world. When the fights among rival factions broke out in the

recently independent Congo, turning the rich province of Katanga autonomous from the rest

of the country, soldiers of fortune started to be employed. Moise Tshombe, the provincial

tribal leader, hired mercenaries mostly from South Africa and also some former members of

the French Foreign Legion to fight against other foe factions. Their ruthlessness earned them

the title of Les Affreux, the dreadful ones.

Les Affreaux were employed once more by Tshombe in 1964, along with other

Belgian, French and Spanish mercenaries, when he became Prime Minister, in order to fight

the Simbas, an opposition group – supported by the Soviet Union – who tried to take

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Tshombe out of power. By 1967, Congo had become so unstable that the mercenaries

themselves turned against their former employers and attempted to take over the country.

Other parts of Africa were also fertile ground for the mercenary and his trade. When

Nigeria gained its independence from Great Britain in 1960, internal conflicts began

immediately among tribal and regional factions as well as between Christians and Muslims.

Once the civil war had broken out when the country’s Biafra region declared its own

independence, in 1967, both sides quickly advertised for soldiers of fortune to defend and

expand their claims. Still in the 1960s, black guerrillas supported by the Soviet Union and

other communists began an independence movement against the white Rhodesian government

(actual Zimbabwe). Unlike in the Congo and Nigeria, white mercenaries were recruited to

fight as members of all-white units against black revolutionaries, based not on the salary

offered, but for what was basically a white-against-black conflict. They came especially from

what remained of the British Empire: Australia and Canada.

With the fall of the Soviet Union and the end of the Cold War, a decrease in the

number of active military personnel occurred worldwide (KANZLEITER, 2005). That does

not mean that every dispute reached an end. Border wars, political rivalries, and ethnic

conflicts still exist, and new threats to peace and security have emerged. In this context,

privatization – contracting out government jobs to civilian enterprises – has found a military

application. Instead of individual or small groups of soldiers of fortune, modern mercenaries

have united into Private Military Companies (PMCs).

2. STATEMENT OF THE ISSUE

In the wake of globalization and at the end of the Cold War, the private military

market has expanded in a way not seen since the 1700s. Although some parallels may exist

between the past mercenaries and present-day private military organizations, the current wave

of PMCs has a fundamental difference: the corporatization of military services (SINGER,

2008). PMCs are structured as firms and operate as business first and foremost. In this sense,

they are often linked through complex financial ties to other firms, both within and outside

their industry. In fact, many of them are openly part of broader multinational corporations.

Nevertheless, it is still important to draw clear distinctions between mercenaries and

PMCs, especially because opinions concerning the latter are much divided. While some argue

that private contractors could be useful even for the improvement of UN peacekeeping and

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peacebuilding forces, others believe that PMCs might represent a threat to civilians and to the

State itself.

2.1. Defining a “Mercenary”

From the outset, it should be noted that the term “private military company” does not

figure in any existing international legislation or convention (GODDARD, 2001; GULAM,

2005). Generally, there are two other categories of international actors associated with the

PMCs: mercenaries and private security companies, or contractors (PSCs). Different labels

can also be found among the literature, such as private (or privatized) military firms (PMFs)

and private security firms (PSFs). Each of them emphasizes somewhat different aspects of the

firms’ activities and try to appear objective in describing the phenomenon.

In this sense, acknowledging the problematic definition of mercenary and its

applications and implications poses an important step toward the definition of a PMC. Singer

(2008, p. 40) observes that “no clear consensus has been reached on how to define

mercenaries”. The Oxford English Dictionary defines a mercenary as “a professional soldier

serving a foreign power”. However, this characterization is too broad, and could include

people engaged in legitimate activities, like the French Foreign Legion and the Swiss Guard

in the Vatican (GULAM, 2005; SINGER, 2008).

In the public imagination, mercenaries are usually described as freelance soldiers of

no fixed abode, who, for large amounts of money, fight for dubious causes. Even the word

“mercenary” has acquired an unflattering connotation: in the general psyche, to be a

“mercenary” is to be inherently ruthless or disloyal. This judgment does not provide,

however, a usable definition of the practice of selling military services (SINGER, 2008).

Furthermore, what appears to some as mercenary activities might be perceived by others as

the acts of freedom fighters28 (DESCHAMPS, 2005).

The best general description for the term is possibly provided by the 1977, Additional

Protocol I to Article 47 of the Geneva Conventions of 12 August 1949, relating to the

Protection of Victims of International Armed Conflicts, which defines “mercenary” as any

28 Although the literal meanings of the words could include anyone who fights for the cause of freedom, the term is also used to describe those engaged in rebellion against the constituted authority that they consider to be oppressive. During the Cold War, it was widely used by the United Sates and other Western Bloc countries to describe rebels in countries controlled by or under the influence of the Soviet Union. As both sides in armed conflicts might claim to represent the popular cause of “freedom”, the use of the term and its implications remain a cause of controversy.

33

foreign person who “is not a member of the armed forces of a Party to the conflict” but is

specifically recruited in order to fight and is “motivated to take part in the hostilities

essentially by the desire for private gain”. The legal designation that this international law

draws from has some flaws that will be later discussed.

In this guide, we shall adopt a more analytic and balanced definition of the term, as the

one provided by Singer (2008). First, there is a general agreement that mercenaries are

individuals who fight for employers other than for their home State’s government. Second,

there is a “cash nexus” that distinguishes mercenaries from volunteer soldiers: mercenaries’

motivation for fighting is economic gain, while volunteer soldiers often fight for a specific

cause. Third, the mercenary’s loyalty is not governed by a greater or permanent cause or duty,

but by his contract only. Unlike other soldiers, mercenaries do not fight for a country, for their

homes, families or for a greater force they believe in: “they simply harbor an open

commitment to war as a professional way of life” (SINGER, 2008, p. 41). Although soldiers

often serve to prevent wars, mercenaries require wars as they trade benefits from its existence.

Since mercenaries are under no obligations other than to their own profit, they can leave

military life whenever they choose, unlike those who serve within national armies who do not

have this choice.

Another useful distinguishing factor between national armies and mercenaries is the

way the last are recruited and organized. The mercenary business operates outside legal trade

parameters. Thus, recruiting by modern-day mercenaries is done obliquely. A further

consequence is that their organizations are completely ad-hoc. “Few mercenary soldiers will

have worked together, and there is little or no joint training doctrine, or coordination”

(SINGER, 2008, p. 42). The absence of legal or contractual bounds produces a limited

hierarchy, making command inherently weak. The final result of this extemporizing grouping

is that modern mercenary formations are limited in their capabilities. Most can only provide

direct combat support at the small-unit level and some are limited to introductory military

training. In other words, they do not have the skills, capital, or established methods and

capabilities to provide complex multi service operations as do PMCs. Nor they have

diversified organizations, being limited in their ability to operate in more than one geographic

setting at a time. They are also generally restricted to one customer per time, and remain

highly dependent to their host communities for logistic and support. “The end result is that

mercenaries provide marginal aspects of military outsourcing, but certainly not the complete

transfer of responsibility privatization entails” (SINGER, 2008, p. 42).

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2.2. Defining a “Private Military Company”

Even though the past mercenaries still exist today, PMCs represent the next evolution

in the provision of military services by private actors. “The newest wave of private military

agents are commercial enterprises first and foremost. They are hierarchically organized into

registered business and trade and compete openly (for the most part) and are vertically

integrated into the wider global marketplace” (SINGER, 2008, p. 45), offering packaged

services covering a wide variety of military skill set to targeted market niches. Even the

existence of a coherent industry of these companies can be recognized as a proof of their

distinction.

This corporatization generates several other distinguishing characteristics. First, PMCs

are organized in business form, which contrasts with the common ad-hoc structure of

individual mercenaries forming loose units. They are ordered under a clear executive

hierarchy that usually includes a board of directors and share-holdings. This creates a more

efficient and permanent structure that can compete and survive in the global marketplace.

The second implication of corporatization is that new private military actors are driven

by business profit rather than by individual profit. PMCs function as registered trade units

and, as firms, they can make use of complex corporate financing, “ranging from sale of stock

shares to intra-firm trade, meaning that a wider variety of deals and contracts can be worked

out” (SINGER, 2008, p. 46). In this case, it is not the person that matters, but the structure

that they are in.

The third point is that the privatized military industry competes on the open market as

authorized actors. Unlike most mercenary units, PMCs are considered legal entities bound to

their employers by recognized contracts and in many cases at least nominally to their home

States by laws requiring registration, periodic reporting, and licensing of foreign contracts.

The status of registered business differentiates them from mercenaries, which usually have to

hide from the law.

New military firms also provide a much wider array of services to a much wider

variety of clients. Many are diversified enough to work for multiple clients in multiple

markets and theaters at once. In the words of Rosen, “the modern PMC has offices in more

than one country, with contracts all over the world” (ROSEN, 2005, p. 143). The corporate

approach and the openness of the market also create a more proficient recruitment pattern.

Public application processes are used by most PMCs, and they work from established

35

databases that attempt to cover the available employee pool. “Firms screen potential

employees for valued skill-sets and tailor their staff to specific mission needs. In addition to

the efficiency gains, the resultant output is usually more effective” (SINGER, 2008, p. 47).

The personnel within PMCs operate with a set doctrine and greater cohesion of activity and

discipline.

Finally, the firms differ in their relations outside the industry. Many are tightly linked with

greater financial holdings and conglomerates. Such ties provide legitimacy and connections to

the PMCs and allow them to have greater access to financial capital.

Table 1. Comparative Charter

Mercenaries Private Military Companies

Organization Temporary and ad-hoc grouping

of individual soldiers.

Prior corporate structure.

Motives Individual short-term economic

reward.

Business profit driven.

Services Lacking prior organization,

focus on combat services, for

single clients.

Wider Range, varied clientele.

Recruitment Brought in by oblique and

circuitous ways to avoid legal

persecution.

Public, specialized.

Linkages Independence: not integrated

(for the long term) into any

national force, and is bound only

by the contractual ties of a

limited employee.

Ties to corporate holdings and

financial markets.

2.3. The Rise of Private Military Companies

Historically, private military forces have assumed innumerable forms and played

different roles in the conduct of warfare, existing and persisting alongside government

controlled militaries. As Singer points out, “there is no record of the first mercenary, but the

profession was born the first time three conditions were met: one; a war to fight; two,

someone or a group willing to pay for a substitute; three, a fighter or group of them willing to

hire out to do the fighting” (SINGER, 2008, p. 19). In this sense, private contractors should be

36

seen as complementary to State-sponsored forces, especially considering that governments did

not possess the monopoly on the use of force at numerous stages in history.

The interaction of several recent developments has created a geopolitical and

ideological context conductive to the resurgence of private military forces in the recent years.

The ending of the Cold War affected both the demand and supply sides of the market for

private force, stimulating the private military organizations industry. “The privatized military

industry is not just a flashback to historic private military agents. Nor is there any simple

cause behind its emergence. Instead, it is distinctly representative of the changed global

security and business environments at the start of the twenty-first century” (SINGER, 2008, p.

49).

The opening of the world economy, plus the change in the global security paradigm

led to the emergence of new conflict groups, not necessarily bound to any State. In this

context, the private actors’ comeback in war-making is part of a more general trend toward

eroding State control over violence. According to O’Brien, “within the relationship between

sovereignty and security, the disintegration of Westphalian notions of state sovereignty –

including their allied Weberian notion of the ‘monopoly of violence’ of the state – and the

effects that this has on security and war cannot be underestimated when looking at conflict

resolution and post-conflict reconstruction” (O’BRIEN, 2007, p.33). This is what authors

might call the “privatization of war”, or “privatization of force” phenomenon.

On the demand side of the private market of force, one could say that security has

been privatized because public authorities are unwilling or even unable to provide it in many

areas of the globe. As the very nature of the warfare also changes, many military functions are

transferred to civilian specialists, and “as the civilian role in warfare is expanded, it becomes

increasingly difficult to draw a precise line between military and non-military occupations”

(SINGER, 2008, p. 63). In this sense, even the most competent State can turn over some

military functions to private actors. On the other hand, weak, inept and corrupt States might

rely on private actors to protect and maintain important strategic facilities or sources of

revenue.

On the supply side, a pool of labor was created by the downsizing of military forces

since the end of the Cold War, benefiting the private market of force. Either former

professional soldiers and conscripts or even men who want to become part of a military force

have discovered a bright opportunity on the PMCs, especially when “the private military labor

37

pool for both conflict groups and private firms broadened and cheapened” (SINGER, 2008, p.

53).

The availability of weaponry also affected the market of force. Powerful and

technologically sophisticated weapons that were formerly under the exclusive control of state

military forces might be acquired by willing costumers around the world at bargain-basement

prices. Furthermore, the privatization of military forces is also part of the greater trend

towards downsizing and outsourcing in both public and private sectors.

3. PREVIOUS INTERNATIONAL ACTIONS

As stated before, the term “private military company” does not exist within any

international convention or legislation. In this sense, the nearest comparative functional term

would be that of “mercenary”. Despite the controversies over this term, mercenaries are dealt

within two international Conventions that aim at their elimination trough the criminalization

of their activities. Furthermore, the Additional Protocol I to Article 47 of the Geneva

Conventions of 12 August 1949, relating to the Protection of Victims of International Armed

Conflicts deals with mercenaries through the international humanitarian law scope.

On 3 July 1977, the African Union29 (AU) established the Convention for Elimination

of Mercenarism in Africa, which renders illegal sheltering, organizing, financing, assisting,

equipping, training, or supporting mercenary activities in any manner against a process of

self-determination or the territorial integrity of another State. Nine years later, the UN

Economic and Social Council (ECOSOC) addressed the issue through a resolution that

condemned “any State which persisted in permitting or tolerating the recruitment of

mercenaries, and the provision of facilities to them, with the objective of overthrowing the

governments of States Members of the United Nations”, as well as “the increased recruitment,

financing, training, assembly, transit and use of mercenaries” (E/RES/1986/43). Further

discussions led to the adoption of the International Convention against the Recruitment, Use,

Financing and Training of Mercenaries (A/RES/44/34), on 4 December 1989. Despite the

29 Previously known as Organization of African Unity.

38

existence of such Convention, none of the permanent members of the UN Security Council30

has signed the document.

The Additional Protocol I to the Geneva Conventions is, however, the primary

document of international standing on the matter that is extant today. It is the main provision

in force that contains a definition of mercenaries31. Differently of the “mercenary

conventions”32, it does not legislate against mercenary activity, but rather acknowledges their

existence and seeks to define their legal status and codify their standing within the context of

international humanitarian law. Therefore, the “mercenary conventions” and the Additional

Protocol I have different interpretations of mercenarism. According to Cameron, “under the

mercenary conventions, if States parties thereto have adopted implementing legislation,

persons who fulfill the definition of a mercenary may be prosecuted for the distinct crime of

being a mercenary. Under international humanitarian law, in contrast, it is not a violation of

the Geneva Conventions or Protocols to be a mercenary and mercenarism in and of itself does

not engender international criminal responsibility; simply, a mercenary does not benefit from

prisoner-of-war status if captured” (CAMERON, 2006, p. 577).

Thus, a mercenary, as defined under Additional Protocol I, may be punished under the

international laws of the detaining power for the fact of having directly participated in

hostilities, if so it chooses. But it can be persecuted only if the State also has separate

legislation designating mercenarism as a crime. Another distinction between the two regimes

is that the “mercenary status is only relevant under international humanitarian law only in

international armed conflicts, whereas the mercenary conventions may also apply in situations

of non-international armed conflict” (CAMERON, 2006, p. 578). Due to political

compromises among the signatory States, the Protocol was amended to define mercenaries as

only operating in international conflicts, even when hired foreigners can and do fight in

internal conflicts (SINGER, 2008).

Furthermore, the convention “elucidates the term against the backdrop of the period in

which it was drafted” (MATZIORINES, 2004, p. 11). The consequence is that the

applicability and relevance of the Protocol as a mean for the current legal context of the

30 The UN Security Council is composed by five permanent members – China, France, Russian Federation, the United Kingdom, and the United States – and ten non-permanent members – Belgium, Burkina Faso, Costa Rica, Croatia, Indonesia, Italy, Libyan Arab Jamahiriya, Panama, South Africa and Viet Nam. 31 See “Defining a Mercenary”. 32 The Convention for Elimination of Mercenarism in Africa and the International Convention against the Recruitment, Use, Financing and Training of Mercenaries are together known as the “mercenary conventions”.

39

PMCs is substantially degraded, and any subsequent international legislation designed from it

will be erroneous in application to PMCs.

In 1988, the UN established the standing appointment of the Special Rapporteur on

Mercenaries within the Office of the Commission on Human Rights. The first Rapporteur,

Enrique Ballesteros, acknowledged that the framework of “international legislation has not

taken account of new forms of mercenary activities” (E/CN.4/1999/11) and stressed “that

mercenary initiatives by private companies registered as security firms in a third country were

a threat to national sovereignty” (GA/SHC/3376) and to the exercise of the right of peoples to

self-determination. The latter Repporteur, Shaista Shameen, adopted a more controversial

point of view, suggesting the employment of PMCs in order to curb some UN problems in

peacekeeping operations. In addition, she stressed “the need to be careful not to confuse

mercenaries with other actors in the field - such as ‘terrorists’, ‘freedom fighters’,

‘volunteers’, ‘part-time soldiers’, ‘rebels with a cause’ and ‘private security companies’

supplying security services to individuals and organizations in trouble spots throughout the

world” (E/CN.4/2005/14).

In 2005, the General Assembly requested the Special Rapporteur to circulate to States

and consult with them on the new proposal for a legal definition of a mercenary drafted by the

former Special Rapporteur and to report her findings to the Commission on Human Rights

and the General Assembly. The task was later redirected to a Working Group, since many

countries were not satisfied with Shameen’s declarations.

4. BLOC POSITIONS

Despite the existent controversy about the use of PMCs within the United States of

America, the practice is a part of the country’s foreign policy. The US Government has

already institutionalized the matter of the PMCs, considering it a military topic. Currently, US

contracts for private military services are issued mainly by agencies of the Department of

Defense and the Department of State, and the use of private contractors by US Armed Forces

is institutionalized through the Army regulation Contractors Accompanying the Force33. The

document regulates the action of such companies, providing the Army “policy for obtaining

and using US citizens contracted to support or augment Army forces in operations-other-than-

33 Further information available at: http://www.army.mil/usapa/epubs/pdf/r715_9.pdf. Last accessed: 29 August 2008.

40

war and wartime operations”, and establishing “Department of the Army policies,

responsibilities, and procedures for using contractors on the battlefield, and specifically

addresses planning for acquiring and administering commercial support services on the

battlefield” (US ARMY, 2008). The US Customs Office is responsible, than, for licensing the

companies to work abroad, and after that there is no control afterwards whatsoever. Although

the United States did not ratify the Protocol Additional to the Geneva Conventions of 12

August 1949, the country relies on a wide array of national laws to regulate the use of PMCs,

as the Military Extraterritorial Jurisdiction Act of 2000 (MEJA), the Uniform Code of

Military Justice (UCMJ) and the War Crimes Act of 1996, which prohibits many grave

breaches of Common Article 3 to the Geneva Conventions, including torture, murder of an

individual not taking part in hostilities and sexual assault.

Although the US administration is very supportive of the concept of PMCs and despite

county’s development of a system for their regulation and use in defense contracts, the

situation in Iraq has demonstrated significant weaknesses in the system, and the Congress as

well as the Pentagon is undertaking a review of the existing system

In this sense, the position of the Iraqi and Afghan Governments is still fragile. Both

countries consider the usage of PMCs necessary, but face problems with the international

hiring of PMCs. Afghanistan witnessed the installation of a private prison inside its territory,

which was a clear violation of the State's sovereignty; while the Iraqi government has trouble

to control the greatest density of PMCs usage in the world. Nevertheless, the Iraqi national

army has been trained by PMCs for combat engagement, but this help has been strongly

criticized as for its quality.

The Russian Federation has shown growing concern about the use of PMCs in armed

conflicts over the past few years. During the UNSC meeting of 20 November 2007, the

country accused those companies of human rights and humanitarian law violations, defending

that “the responsibility to protect civilians falls first and foremost to the Governments of

States in conflict”. In addition, the Russian representative stated “that such responsibility

should also be borne in mind by non-State actors” (S/PV.5781). In fact, the Russian

Federation views the use of and service as mercenaries as criminal in its new Criminal Code

(DESCHAMPS, 2005, p. 38). Registers point out, however, that Russia might be using PMCs

in conflicted areas. In 2000, Georgia reported to the Special Repporteur on the question of the

use of mercenaries the existence of Russian “mercenary activities in North Caucasus,

especially in Chechnya” and in Abkhazia (A/55/334). In fact, there are today more than 9,000

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private security enterprises operating in Russia (O’BRIEN, 2000), which, like the other

permanent members of the UNSC, has not signed the UN Convention on Mercenaries.

Even though the Chinese government had already contracted mercenaries before the

implementation of the communist regime, as witnessed on the Opium War, records on the use

of or the provision of mercenaries by the People’s Republic of China are not available. The

specificities of the communist policy do not allow such practices, which is probably why

there are no Chinese PMCs. Current transformations inside the People’s Liberation Army

(PLA) based on new technologies and on the concept of cyber/strategic information war

might point to the State’s necessity of contracting PMCs in the near future. In addition, until

now there are no Chinese national laws regulating the use of such enterprises.

The European Union (EU) countries are far from achieving a solid position on the

subject, especially due to the lack of clearer regulations. What has been a common-ground

official address to the use of PMCs is the usage of public-private partnerships, as an economic

viable situation for conflict engagement, as well as national regulations. The latter also

exemplifies the need for further discussions inside the organization. Heading the regulatory

movement are France, and its strict internal legislation on the privatization of war, Germany

and the United Kingdom.

France did not consider it useful to sign the resolutions of the Commission on Human

Rights on the use of mercenaries as a means of impeding the exercise of the right of peoples

to self-determination. However, the French State has recently inserted a law (#115-

04/03/2003) concerning the use of mercenaries into its legal system. Although this law does

not take into account the notion of the private military company, the constitution of such firms

is subjected to a check process by the state.

The United Kingdom is one of the first and most active government in the struggle

against the non State use of force. The “Foreign Enlistment Act” of 1819 and 1870 might be

considered, perhaps, the first effort taken by the UK in order to regulate the involvement of its

citizens in foreign conflicts. More recently, the British Government has showed its concern

regarding the matter with several studies and reports, like the Green Paper on Private Military

Companies from 2001-2002. The paper opened the debate on the use of PMCs and the

involvement of British nationals abroad as part of Private military operations, introducing six

options for regulation covering a range of measures intended to regulate the national and

international market.

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There are, however, codes and rules within the EU that seek to control the deployment

of PMCs in conflicted areas, such as the The European Code of Conduct on Armament

Exports, the various Common Foreign and Security Policies, and some Ad Hoc Regulations.

In spite of the restrictions that emerge from the mentioned agreements, European PMCs are

still able to act in conflicts outside Europe.

Even greater need for discussions is verified within the African Union (AU).

Although the AU has made clear its position against the utilization of PMC on the

Organization of African Unity Convention for the Elimination of Mercenarism in Africa,

some important members do not back this position. However, it is necessary to recognize that

this law has seldom been enforced as demonstrated by the use of Executive Outcomes, a now

defunct South African PMC, by Angola and Sierra Leone, as well as by Mobutu’s

mercenaries.

The South African Republic is a country where history is broadly linked to

mercenary activities. It is also a country, which uses active PMCs in the conduct of combat

operations and is one of world’s main PMCs provider. The country, however, did not sign the

OAU document, focusing its efforts on its own Regulation of Foreign Military Assistance

Act, which addresses both mercenaries and PMCs. Nevertheless, the Act is criticized by

members of the South African government which consider it to be flawed, as it prohibits the

use of mercenaries while allows the rendering of PMCs

The debate on PMCs must be better addressed on Latin America. Firstly because the

region has ongoing conflicts in which PMCs act. Secondly because Latin American countries

are facing an altogether different situation, as a considerable number of civilians are being

hired by PMCs to work within conflict zones. The case of Colombia illustrates this situation.

The usage of PMCs inside Colombian national territory has dubious points of view. One must

consider first that the Colombian government allows, and even considers necessary, the

contraction of PMCs for the implementation and stabilization of “Plan Colombia”. On the

other hand, PMCs have already sold combat experience for the Colombian Armed

Revolutionary Forces in the past. Also relevant to consider is the 1989 Colombian trial that

judged guilty a mercenary leader hired to murder international drug dealer Pablo Escobar, but

failed in his attempt. He was then arrested when acting in the Iraq war.

5. QUESTIONS TO PONDER

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During UFRGSMUN, SPECPOL members are called to set an opinion towards the

proposed topic, reflecting about the following suggested questions and any other relevant

issues:

1. How to define a PMC and how to define a mercenary?

2. Is it possible to regulate PMCs actions? What would be the best international

approach in order to do so? Is it possible to develop an international framework

on the matter?

3. Who is responsible for the actions of such companies?

4. What are the implications of the use of PMCs in both national and international

levels? What are the implications of the use of PMCs to the parties in conflict?

What are the implications of the use of PMCs to the civilians involved in

armed conflicts?

6. REFERENCES

Books

AVANT, Deborah. The Market for Force. New York: Cambridge University Press, 2005.

FAYEMI, J. ‘Kayode; MUSAH, Abdel-Fatau. Mercenaries: An African Security Dilemma. London: Pluto Press, 2000.

LANNING, Michael Lee. Mercenaries: Soldiers of Fortune, from Ancient Greece to Today’s Private Military

Companies. New York: Presidio Press, 2005.

MACHIAVELLI, Niccolò. The Prince. New York: Bartleby.com, 2001.

MÜNKLER, Herfried. The New Wars. Cambridge: Polity Press, 2005.

PELTON, Robert Young. Licensed to Kill: Hired Guns in the War on Terror. New York: Three Rivers Press, 2006.

ROSEN, Fred. Contract Warriors: How Mercenaries Changed History and the War on Terrorism. New York: Alpha Books, 2005.

SCAHILL, Jeremy. Blackwater: the Rise of the World’s Most Powerful Mercenary Army. New York: Nation Books, 2007.

SINGER, Peter W. Corporate Warriors: The Rise of the Privatized Military Industry. New York: Cornell University Press, 2008.

UESSELER, Rolf. La Guerra Como Negocio: Como Las Empresas Militares Privadas Destruyen la

Democracia. Bogotá: Grupo Editorial Norma, 2007.

VERKUIL, Paul R. Outsourcing Sovereignty: Why Privatization of Government Functions Threatens

Democracy and What We Can Do About It. Cambrige: Cambridge University Press, 2007.

6.2. Articles and Thesis

AVANT, Deborah. Privatizing Military Training. In: Foreign Policy in Focus. Vol. 7, No. 6. May 2002.

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BEYANI, Chaloka; LILLY, Damian. Regulating Private Military Companies: Options for the UK Government. International Alerts, August, 2001.

CAMERON, Lindsey. Private Military Companies and their Status Under International Humanitarian Law. International Review of the Red Cross. Vol. 88, No 863. September 2006.

DESCHAMPS, Sebastian. Towards the use of the Private Military Companies in the United Nations

Peacekeeping Operations. United Nations Institute for Training and Research Programme of Correspondence Instruction. January, 2005.

GODDARD, Scott C. The Private Military Company: A Legitimate Internationl Entity Within Modern Conflict. 2001.

GULAM, Hyder. The Rise and Rise of Private Military Companies. United Nations Institute for Training and Research Programme of Correspondence Instruction. August, 2005.

KIDWELL, Deborah C. Public War, Private Fight? The United States and Private Military Companies. Fort Leavenworth, Kansas: Combat Studies Institute Press, 2005.

LEANDER, Anna. Eroding State Authority? Private Military Companies and the Legitimate Use of Force. Roma: Centro Militare di Studie Strategici, 2006.

MATZIORINIS, Nicholas. Private Military Companies: Legitimacy and Accountability. 2004.

MÜNKLER, Herfried. The Wars of the 21st Century. International Review of the Red Cross. Vol. 85, No 849. March 2003.

O’BRIEN, Kevin A. PMCs, Myths and Mercenaries: The Debate on Private Military Companies. In: Royal United Service Institute Journal, February 2000.

O’BRIEN, Kevin A. What Should and What Should Not be Regulated. In: From Mercenaries to Market: The Rise and Regulation of Private Military Companies. CHESTERMAN, Simon; LEHNARDT, Chia (eds). Oxford University Press, 2007, p. 29-48.

WITHER, James K. European Security and Private Military Companies: the Prospects for Privatized

“Battlegroups”. Quarterly Journal, Summer 2005.

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UNITED NATIONS. International Convention against the Recruitment, Use, Financing and Training of

Mercenaries. UN Doc. A/RES/44/34, 4 December 1989. Available at: http://www.un.org/documents/ga/res/44/a44r034.htm. Last accessed: 23 September 2008.

UNITED NATIONS. The Right of Peoples to Self-Determination and its Application to Peoples Under Colonial

or Alien Domination or Foreign Occupation. UN Doc. E/CN.4/1999/11, 13 January 1999. Available at: http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/ab78acfb0828505780256737003f82a4. Last accessed: 23 September 2008.

UNITED NATIONS. Use of mercenaries as a means of violating human rights and impeding the exercise of the

right of peoples to self-determination. UN Doc. A/55/334 Available at: http://daccessdds.un.org/doc/UNDOC/GEN/N00/626/02/PDF/N0062602.pdf?OpenElement. Last accessed: 24 September 2008.

UNITED NATIONS. Protection of civilians in armed conflict: Report of the Secretary-General on the protection of civilians in armed conflict. UM Doc. S/PV.5781. Available at: http://daccessdds.un.org/doc/UNDOC/PRO/N07/605/03/PDF/N0760503.pdf?OpenElement. Last accessed: 24 September 2008.

UNITED NATIONS. Use of Mercenaries as a Means to Violate Human Rights and to Impede the Exercise of the

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http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/668/91/IMG/NR066891.pdf?OpenElement. Last accessed: 23 September 2008.

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BRITISH FOREIGN AND COMMONWEALTH OFFICE. Ninth Report of the Foreign Affairs Committee:

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