This document summarizes key findings from two books that detail extensive documentation of prisoner abuse and torture by U.S. forces in Iraq and Guantanamo Bay. It describes how ambiguous and contradictory directives from President Bush and top officials created confusion over what interrogation techniques were allowed. This led to the widespread use of abusive techniques across multiple prisons, including hooding, beatings, sexual humiliation, and in some cases killing prisoners. The document provides numerous specific examples of torture reported by prisoners and investigations. It concludes that while no high-level officials directly ordered torture, the policies and mixed messages they endorsed helped enable the systematic abuse of prisoners.
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January 23, 2005
Atrocities in Plain Sight
By Andrew Sullivan
Correction Appended
THE ABU GHRAIB INVESTIGATIONS
The Official Report of the
Independent Panel and Pentagon on the Shocking Prisoner
Abuse in
Iraq.
Edited by Steven Strasser.
Illustrated. 175 pp.
PublicAffairs. Paper, $14.
TORTURE AND TRUTH
America, Abu Ghraib,
and the War on Terror.
By Mark Danner.
Illustrated. 580 pp.
New York Review Books.
2. Paper, $19.95.
IN scandals, chronology can be everything. The facts you find
out first,
the images that are initially imprinted on your consciousness,
the
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details that then follow: these make the difference between a
culture-
changing tipping point and a weatherable media flurry. With the
prisoner abuse at Abu Ghraib, the photographs, which have
become
iconic, created the context and the meaning of what took place.
We
think we know the contours of that story: a few soldiers on the
night
shift violated established military rules and subjected prisoners
to
humiliating abuse and terror. Chaos in the line of command, an
overstretched military, a bewildering insurgency: all contributed
to
incidents that were alien to the values of the United States and
its
military. The scandal was an aberration. It was appalling.
Responsibility was taken. Reports were issued. Hearings
continue.
But the photographs lied. They told us a shard of the truth. In
retrospect, they deflected us away from what was really going
on, and
what is still going on. The problem is not a co-ordinated cover-
up. Nor
3. is it a lack of information. The official government and Red
Cross
reports on prisoner torture and abuse, compiled in two separate
volumes, ''The Abu Ghraib Investigations,'' by a former
Newsweek
editor, Steven Strasser, and ''Torture and Terror,'' by a New
York
Review of Books contributor, Mark Danner, are almost
numbingly
exhaustive in their cataloging of specific mistakes, incidents
and
responsibilities. Danner's document-dump runs to almost 600
pages
of print, the bulk of it in small type. The American Civil
Liberties
Union has also successfully engineered the release of what may
eventually amount to hundreds of thousands of internal
government
documents detailing the events.
That tells you something important at the start. Whatever
happened
was exposed in a free society; the military itself began the first
inquiries. You can now read, in these pages, previously secret
memorandums from sources as high as the attorney general all
the
way down to prisoner testimony to the International Committee
of the
Red Cross. I confess to finding this transparency both
comforting and
chilling, like the photographs that kick-started the public's
awareness
of the affair. Comforting because only a country that is still free
4. would
allow such airing of blood-soaked laundry. Chilling because the
crimes
committed strike so deeply at the core of what a free country is
supposed to mean. The scandal of Abu Ghraib is therefore a
sign of
both freedom's endurance in America and also, in certain dark
corners, its demise.
The documents themselves tell the story. In this, Danner's book
is by
far the better of the two. He begins with passionate essays that
originally appeared in The New York Review of Books, but
very soon
leaves the stage and lets the documents speak for themselves.
His
book contains the two reports Strasser publishes, but many more
as
well. If you read it in the order Danner provides, you can see
exactly
how this horror came about -- and why it's still going on. As
Danner
observes, this is a scandal with almost everything in plain sight.
The critical enabling decision was the president's insistence that
prisoners in the war on terror be deemed ''unlawful combatants''
rather than prisoners of war. The arguments are theoretically
sound
ones -- members of Al Qaeda and the Taliban are not party to
the
Geneva Convention and their own conduct violates many of its
basic
demands. But even at the beginning, President
Bush clearly feared the consequences of so broad an exemption
for
5. cruel and inhumane treatment. So he also insisted that although
prisoners were not legally eligible for humane treatment, they
should
be granted it anyway. The message sent was: these prisoners are
beneath decent treatment, but we should still provide it. That's a
strangely nuanced signal to be giving the military during
wartime.
You can see the same strange ambivalence in Secretary of
Defense
Donald Rumsfeld's decision to approve expanded interrogation
techniques in December 2002 for Guant?mo inmates -- and then
to
revoke the order six weeks later. The documents show that the
president was clearly warned of the dangers of the policy he
decided
upon -- Colin Powell's January 2002 memo is almost heart-
breakingly
prescient and sane in this regard -- but he pressed on anyway.
Rumsfeld's own revocation of the order suggests his own moral
qualms about what he had unleashed.
But Bush clearly leaned toward toughness. Here's the precise
formulation he used: ''As a matter of policy, the United States
Armed
Forces shall continue to treat detainees humanely and, to the
extent
appropriate and consistent with military necessity, in a manner
consistent with the principles of Geneva.'' (My italics.)
Notice the qualifications. The president wants to stay not within
the
letter of the law, but within its broad principles, and in the last
6. resort,
''military necessity'' can overrule all of it. According to his
legal
counsel at the time, Alberto R. Gonzales, the president's
warmaking
powers gave him ultimate constitutional authority to ignore any
relevant laws in the conduct of the conflict. Sticking to the
Geneva
Convention was the exclusive prerogative of one man, George
W.
Bush; and he could, if he wished, make exceptions. As Assistant
Attorney General Jay S. Bybee argues in another memo: ''Any
effort to
apply Section 2340A in a manner that interferes with the
president's
direction of such core war matters as the detention and
interrogation
of enemy combatants thus would be unconstitutional.'' (Section
2340A refers to the United States law that incorporates the
international Convention Against Torture.)
The president's underlings got the mixed message. Bybee
analyzed the
relevant statutes against torture to see exactly how far the
military
could go in mistreating prisoners without blatant illegality. His
answer
was surprisingly expansive. He argued that all the applicable
statutes
and treaty obligations can be read in such a way as to define
torture
very narrowly. Bybee asserted that the president was within his
legal
7. rights to permit his military surrogates to inflict ''cruel,
inhuman or
degrading'' treatment on prisoners without violating strictures
against
torture. For an act of abuse to be considered torture, the abuser
must
be inflicting pain ''of such a high level of intensity that the pain
is
difficult for the subject to endure.'' If the abuser is doing this to
get
information and not merely for sadistic enjoyment, then ''even if
the
defendant knows that severe pain will result from his actions,''
he's
not guilty of torture. Threatening to kill a prisoner is not
torture; ''the
threat must indicate that death is 'imminent.' '' Beating prisoners
is
not torture either. Bybee argues that a case of kicking an inmate
in the
stomach with military boots while the prisoner is in a kneeling
position does not by itself rise to the level of torture.
Bybee even suggests that full-fledged torture of inmates might
be legal
because it could be construed as ''self-defense,'' on the grounds
that
''the threat of an impending terrorist attack threatens the lives of
hundreds if not thousands of American citizens.'' By that
reasoning,
torture could be justified almost anywhere on the battlefield of
the war
on terror. Only the president's discretion forbade it. These
guidelines
8. were formally repudiated by the administration the week before
Gonzales's appearance before the Senate Judiciary Committee
for
confirmation as attorney general.
In this context, Rumsfeld's decision to take the gloves off in
Guant?mo
for six weeks makes more sense. The use of dogs to intimidate
prisoners and the use of nudity for humiliation were now
allowed.
Although abuse was specifically employed in only two cases
before
Rumsfeld rescinded the order, practical precedents had been set;
and
the broader mixed message sent from the White House clearly
reached
commanders in the field. Lt. Gen. Ricardo S. Sanchez, in charge
of the
Iraq counterinsurgency, also sent out several conflicting memos
with
regard to the treatment of prisoners -- memos that only added to
the
confusion as to what was permitted and what wasn't. When the
general in charge of Guant?mo was sent to Abu Ghraib to help
intelligence gathering, the ''migration'' of techniques (the term
used in
the Pentagon's Schlesinger Report) from those reserved for
extreme
cases in the leadership of Al Qaeda to thousands of Iraqi
civilians,
most of whom, according to intelligence sources, were innocent
of any
crime at all, was complete. Again, there is no evidence of
anyone at a
high level directly mandating torture or abuse, except in two
9. cases in
Gitmo. But there is growing evidence recently uncovered by the
A.C.L.U. -- not provided in Danner's compilation -- that
authorities in
the F.B.I. and elsewhere were aware of abuses and did little to
prevent
or stop them. Then there were the vast loopholes placed in the
White
House torture memos, the precedents at Guant?mo, the winks
and
nods from Washington and the pressure of an Iraqi insurgency
that
few knew how to restrain. It was a combustible mix.
What's notable about the incidents of torture and abuse is first,
their
common features, and second, their geographical reach. No one
has
any reason to believe any longer that these incidents were
restricted to
one prison near Baghdad. They were everywhere: from
Guant?mo Bay
to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for all
we
know, in any number of hidden jails affecting ''ghost detainees''
kept
from the purview of the Red Cross. They were committed by the
Marines, the Army, the Military Police, Navy Seals, reservists,
Special
Forces and on and on. The use of hooding was ubiquitous; the
same
goes for forced nudity, sexual humiliation and brutal beatings;
there
are examples of rape and electric shocks. Many of the abuses
10. seem
specifically tailored to humiliate Arabs and Muslims, where
horror at
being exposed in public is a deep cultural artifact.
Whether random bad apples had picked up these techniques
from
hearsay or whether these practices represented methods
authorized by
commanders grappling with ambiguous directions from
Washington
is hard to pin down from the official reports. But it is surely
significant
that very few abuses occurred in what the Red Cross calls
''regular
internment facilities.'' Almost all took place within prisons
designed to
collect intelligence, including, of course, Saddam Hussein's
previous
torture palace at Abu Ghraib and even the former Baathist
secret
police office in Basra. (Who authorized the use of these
particular
places for a war of liberation is another mystery.) This tells us
two
things: that the vast majority of soldiers in Iraq and elsewhere
had
nothing to do with these incidents; and that the violence had a
purpose. The report of the International Committee of the Red
Cross
says: ''Several military intelligence officers confirmed to the
I.C.R.C.
that it was part of the military intelligence process to hold a
person
deprived of his liberty naked in a completely dark and empty
cell for a
11. prolonged period to use inhumane and degrading treatment,
including physical and psychological coercion.''
An e-mail message recovered by Danner from a captain in
military
intelligence in August 2003 reveals the officer's desire to
distinguish
between genuine prisoners of war and ''unlawful combatants.''
The
president, of course, had endorsed that distinction in theory,
although
not in practice -- even in Guant?mo, let alone Iraq. Somehow
Bush's
nuances never made it down the chain to this captain. In the
message,
he asked for advice from other intelligence officers on which
illegal
techniques work best: a ''wish list'' for interrogators. Then he
wrote:
''The gloves are coming off gentlemen regarding these
detainees, Col.
Boltz has made it clear that we want these individuals broken.''
How do you break these people? According to the I.C.R.C., one
prisoner ''alleged that he had been hooded and cuffed with
flexicuffs,
threatened to be tortured and killed, urinated on, kicked in the
head,
lower back and groin, force-fed a baseball which was tied into
the
mouth using a scarf and deprived of sleep for four consecutive
days.
Interrogators would allegedly take turns ill-treating him. When
12. he
said he would complain to the I.C.R.C. he was allegedly beaten
more.
An I.C.R.C. medical examination revealed hematoma in the
lower
back, blood in urine, sensory loss in the right hand due to tight
handcuffing with flexicuffs, and a broken rib.''
Even Bybee's very narrow definition of torture would apply in
this
case. Here's another -- not from Abu Ghraib:
A detainee ''had been hooded, handcuffed in the back, and made
to lie
face down, on a hot surface during transportation. This had
caused
severe skin burns that required three months' hospitalization. . .
. He
had to undergo several skin grafts, the amputation of his right
index
finger, and suffered . . . extensive burns over the abdomen,
anterior
aspects of the outer extremities, the palm of his right hand and
the
sole of his left foot.''
And another, in a detainee's own words: ''They threw pepper on
my
face and the beating started. This went on for a half hour. And
then he
started beating me with the chair until the chair was broken.
After that
they started choking me. At that time I thought I was going to
13. die, but
it's a miracle I lived. And then they started beating me again.
They
concentrated on beating me in my heart until they got tired from
beating me. They took a little break and then they started
kicking me
very hard with their feet until I passed out.''
An incident uncovered by the A.C.L.U. and others was
described in
The Washington Post on Dec. 22. A young soldier with no
training in
interrogation techniques ''acknowledged forcing two men to
their
knees, placing bullets in their mouths, ordering them to close
their
eyes, and telling them they would be shot unless they answered
questions about a grenade incident. He then took the bullets,
and a
colleague pretended to load them in the chamber of his M-16
rifle.''
These are not allegations made by antiwar journalists. They are
incidents reported within the confines of the United States
government. The Schlesinger panel has officially conceded,
although
the president has never publicly acknowledged, that American
soldiers
have tortured five inmates to death. Twenty-three other deaths
that
occurred during American custody had not been fully
investigated by
the time the panel issued its report in August. Some of the
techniques
14. were simply brutal, like persistent vicious beatings to
unconsciousness. Others were more inventive. In April 2004,
according to internal Defense Department documents recently
procured by the A.C.L.U., three marines in Mahmudiya used an
electric transformer, forcing a detainee to ''dance'' as the
electricity
coursed through him. We also now know that in Guant?mo,
burning
cigarettes were placed in the ears of detainees.
Here's another case from the Army's investigation into Abu
Ghraib,
led by Lt. Gen. Anthony R. Jones and Maj. Gen. George R. Fay:
''On another occasion DETAINEE-07 was forced to lie down
while
M.P.'s jumped onto his back and legs. He was beaten with a
broom
and a chemical light was broken and poured over his body. . . .
During
this abuse a police stick was used to sodomize DETAINEE-07
and two
female M.P.'s were hitting him, throwing a ball at his penis, and
taking
photographs.''
Last December, documents obtained by the A.C.L.U. also cited
an
F.B.I. agent at Guant?mo Bay who observed that ''on a couple of
occasions, I entered interview rooms to find a detainee chained
hand
and foot in a fetal position to the floor, with no chair, food or
water.
Most times they had urinated or defecated on themselves, and
had
15. been left there for 18 to 24 hours or more.'' In one case, he
added, ''the
detainee was almost unconscious on the floor, with a pile of
hair next
to him. He had apparently been literally pulling his own hair out
throughout the night.''
This kind of scene can also be found at Abu Ghraib: ''An 18
November
2003 photograph depicts a detainee dressed in a shirt or blanket
lying
on the floor with a banana inserted into his anus. This as well as
several others show the same detainee covered in feces, with his
hands
encased in sandbags, or tied in foam and between two
stretchers.''
This, apparently, was a result of self-inflicted mania, although
where
the mentally ill man procured a banana is not elaborated upon.
Also notable in Abu Ghraib was the despicable use of religion
to
humiliate. One Muslim inmate was allegedly forced to eat pork,
had
liquor forced down his throat and told to thank Jesus that he
was
alive. He recounted in broken English:
''They stripped me naked, they asked me, 'Do you pray to
Allah?' I
said, 'Yes.' They said 'F / / / you' and 'F / / / him.' '' Later, this
inmate
recounts: ''Someone else asked me, 'Do you believe in
16. anything?' I said
to him, 'I believe in Allah.' So he said, 'But I believe in torture
and I
will torture you.' ''
Whether we decide to call this kind of treatment ''abuse'' or
some
other euphemism, there is no doubt what it was in the minds of
the
American soldiers who perpetrated it. They believed in torture.
And
many believed it was sanctioned from above. According to The
Washington Post, one sergeant who witnessed the torture
thought
Military Intelligence approved of all of it: ''The M.I. staffs, to
my
understanding, have been giving Graner'' -- one of the chief
torturers
at Abu Ghraib -- ''compliments on the way he has been handling
the
M.I. holds [prisoners held by military intelligence]. Example
being
statements like 'Good job, they're breaking down real fast';
'They
answer every question'; 'They're giving out good information,
finally';
and 'Keep up the good work' -- stuff like that.'' At Guant?mo
Bay,
newly released documents show that some of the torturers felt
they
were acting on the basis of memos sent from Washington.
Was the torture effective? The only evidence in the documents
17. Danner
has compiled that it was even the slightest bit helpful comes
from the
Schlesinger report. It says ''much of the information in the
recently
released 9/11 Commission's report, on the planning and
execution of
the attacks on the World Trade Center and Pentagon, came from
interrogation of detainees at Guant?mo and elsewhere.'' But the
context makes plain that this was intelligence procured without
torture. It also claims that good intelligence was received from
the two
sanctioned cases of expanded interrogation techniques at
Guant?mo.
But everything else points to the futility of the kind of brutal
techniques used in Iraq and elsewhere.
Worse, there's plenty of evidence that this kind of treatment
makes
gathering intelligence harder. In Abu Ghraib, according to the
official
documents, up to 90 percent of the inmates were victims of
random
and crude nighttime sweeps. If these thousands of Iraqis did not
sympathize with the insurgency before they came into American
custody, they had good reason to thereafter. Stories of torture,
of
sexual humiliation, of religious mockery have become
widespread in
Iraq, and have been amplified by the enemy. If the best
intelligence
comes from persuading the indigenous population to give up
information on insurgents, then the atrocities perpetrated by a
tiny
minority of American troops actually help the insurgency, rather
than
18. curtail it.
Who was responsible? There are various levels of
accountability. But it
seems unmistakable from these documents that decisions made
by the
president himself and the secretary of defense contributed to
confusion, vagueness and disarray, which, in turn, led directly
to
abuse and torture. The president bears sole responsibility for
ignoring
Colin Powell's noble warnings. The esoteric differences
between legal
''abuse'' and illegal ''torture'' and the distinction between
''prisoners of
war'' and ''unlawful combatants'' were and are so vague as to
make the
abuse of innocents almost inevitable. Justice Sandra Day
O'Connor
wrote for the majority of the Supreme Court in Hamdi v.
Rumsfeld
that ''the government has never provided any court with the full
criteria that it uses in classifying individuals'' as enemy
combatants. It
is one thing to make a distinction in theory between Geneva-
protected
combatants and unprotected Qaeda operatives. But in the chaos
of a
situation like Iraq, how can you practically know the
difference? When
one group is designated as unworthy of humane treatment, and
that
group is impossible to distinguish from others, it is unsurprising
19. that
exceptions quickly become rules. The best you can say is that in
an
administration with a reputation for clear lines of command and
clear
rules of engagement, the vagueness and incompetence are the
most
striking features.
Worse, the president has never acknowledged the scope or the
real
gravity of what has taken place. His first instinct was to
minimize the
issue; later, his main references to it were a couple of sentences
claiming that the abuses were the work of a handful of
miscreants,
rather than a consequence of his own decisions. But the impact
of
these events on domestic morale, on the morale of the vast
majority of
honorable soldiers in a very tough place and on the reputation
of the
United States in the Middle East is incalculable. The war on
terror is
both military and political. The president's great contribution
has
been to recognize that a solution is impossible without political
reform
in the Middle East. And yet the prevalence of brutality and
inhumanity
among American interrogators has robbed the United States of
the
high ground it desperately needs to maintain in order to win.
20. What
better weapon for Al Qaeda than the news that an inmate at
Guant?
mo was wrapped in the Israeli flag or that prisoners at Abu
Ghraib
were raped? There is no escaping the fact that, whether he
intended to
or not, this president handed Al Qaeda that weapon. Sometimes
a
brazen declaration of toughness is actually a form of weakness.
In a
propaganda war for the hearts and minds of Muslims
everywhere, it's
simply self-defeating.
And the damage done was intensified by President Bush's
refusal to
discipline those who helped make this happen. A president who
truly
recognized the moral and strategic calamity of this failure
would have
fired everyone responsible. But the vice president's response to
criticism of the defense secretary in the wake of Abu Ghraib
was to
say, ''Get off his back.'' In fact, those with real responsibility
for the
disaster were rewarded. Rumsfeld was kept on for the second
term,
while the man who warned against ignoring the Geneva
Conventions,
Colin Powell, was seemingly nudged out. The man who wrote a
legal
opinion maximizing the kind of brutal treatment that the United
States could legally defend, Jay S. Bybee, was subsequently
rewarded
with a nomination to a federal Court of Appeals. General
21. Sanchez and
Gen. John P. Abizaid remain in their posts. Alberto R.
Gonzales, who
wrote memos that validated the decision to grant Geneva status
to
inmates solely at the president's discretion, is now nominated to
the
highest law enforcement job in the country: attorney general.
The man
who paved the way for the torture of prisoners is to be entrusted
with
safeguarding the civil rights of Americans. It is astonishing he
has
been nominated, and even more astonishing that he will almost
certainly be confirmed.
But in a democracy, the responsibility is also wider. Did those
of us
who fought so passionately for a ruthless war against terrorists
give an
unwitting green light to these abuses? Were we na? in believing
that
characterizing complex conflicts from Afghanistan to Iraq as a
single
simple war against ''evil'' might not filter down and lead to
decisions
that could dehumanize the enemy and lead to abuse? Did our
conviction of our own rightness in this struggle make it hard for
us to
acknowledge when that good cause had become endangered? I
fear
the answer to each of these questions is yes.
22. American political polarization also contributed. Most of those
who
made the most fuss about these incidents -- like Mark Danner or
Seymour Hersh -- were dedicated opponents of the war in the
first
place, and were eager to use this scandal to promote their
agendas.
Advocates of the war, especially those allied with the
administration,
kept relatively quiet, or attempted to belittle what had gone on,
or
made facile arguments that such things always occur in wartime.
But
it seems to me that those of us who are most committed to the
Iraq
intervention should be the most vociferous in highlighting these
excrescences. Getting rid of this cancer within the system is
essential
to winning this war.
I'm not saying that those who unwittingly made this torture
possible
are as guilty as those who inflicted it. I am saying that when the
results
are this horrifying, it's worth a thorough reassessment of
rhetoric and
war methods. Perhaps the saddest evidence of our communal
denial in
this respect was the election campaign. The fact that American
soldiers were guilty of torturing inmates to death barely came
up. It
went unmentioned in every one of the three presidential
debates. John
23. F. Kerry, the ''heroic'' protester of Vietnam, ducked the issue
out of
what? Fear? Ignorance? Or a belief that the American public
ultimately did not care, that the consequences of seeming to
criticize
the conduct of troops would be more of an electoral liability
than
holding a president accountable for enabling the torture of
innocents?
I fear it was the last of these. Worse, I fear he may have been
right.
Photos: A naked prisoner appears to cower before an unmuzzled
dog
in a photograph taken at Abu Ghraib prison near Baghdad in
late
2003 and leaked to The Washington Post a few months later.
(Photograph by Agence France-Presse, via Getty Images); A
man
detained at Abu Ghraib appears chained to a bed with a woman's
underpants on his head. (Photograph courtesy of The
Washington
Post); A hooded detainee at Abu Ghraib, apparently chained to a
door
and balancing on two boxes. (Photograph from Agence France-
Presse/The Washington Post)
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Current-State MatrixINFLUENCENegative Support/High
Influence
(Commit)Positive Support/High Influence
(Leverage)Negative Support/Moderate Influence
(Invest)Positive Support/Moderate Influence
(Plan)Negative Support/Low Influence
(Marginalize)Positive Support/Low Influence
(Maintain)SUPPORT
Stakeholder TemplateName of StakeholderDescription of
StakeholderRole of StakholderLevel of Knowledge in
ProgramAvailable Resources, Information, Influence, Money,
Staff, Technology, etc.Level of InterestLevel of SupportLevel
of InfluenceAction Plan for Stakeholder EngagementLevel of
interestLevel of SupportLevel of InfluenceExample: Call Center
ManagerLeader of the Call Center in PhoenixProject
SponsorHigh level of knowledgeFunding of project and internal
resources from call centerHighPositiveHighMaintain regular
communication with stakeholder on progress and
updates.LowNegativeLowCustomersbuyers from the
businessbeneficiary of the projectmedium level of
knowledgehigh levels of customer disatisfaction in the
organizationhighPositiveModerateNotifying customers that the
organization is working towards better
servicesModeratePositiveModerateEmployeesworkers in the
organizationproject team memberHigh level of
knowledgeResponsible for change in the experience customers
get from the businessHighPositiveHighincentives to motivate
them to work towards the attainment of the project
goalsHighHighSuppliersbrings in supplies for productionproject
team membermedium level of knowledgeneeded to supply high
25. quality raw materialsModeratePositiveModeratebriefing the
suppliers about expected quality standardsfinance managerin
charge of finances in the projectproject team memberHigh level
of knowledgeBudget for the
projectHighPositiveModerateBriefing the manager regularly
about any changes in the projectCEOhead of the
organizationProject SponsorHigh level of knowledgeresponsible
for sponsoring the projectHighPositiveHighBriefing the CEO
about the project intent before onset.
Professor Theodore Sarager
BUS-470
3/18/2022
Guerline P. Joseph
The main problem which was identified in my organization for
this project was decreased levels of customer satisfaction;
customers are not happy with the products and services within
the organization and the project focuses on how to increase
customer satisfaction and increase the revenues in the business.
Looking at this project, the stakeholders involved have different
attitudes towards the problem and issue (Stouten et al., 2018).
The sales team are very worried and are willing to increase their
efforts towards making sure the customers have a good
experience in the organization.
The production team in the organization are also positive about
the change in the organization and this is because there is need
for the production process to be changed as well so as to be able
to produce products which meet the needs of the customers and
26. their specifications. Suppliers are also an important stakeholder
in the change but their attitude is neutral because they have not
yet been notified about quality standards being set. The
customer service team is feeling so much pressured as they need
to make sure the customers have a better experience when they
come to the organization.
There have been various situations where there have been
implementation of solutions in the organization related to
organizational problems. The attitude of the stakeholders
including the employees about the previous implemented
changes is positive and this is because the employees have been
able to see the long-term impact of these changes (Lee & Lee,
2020). The management’s attitude towards the change is not
very positive and this is because they expect the solution to
come with additional costs which will increase the overall cost
of production.
When implementing this solution, the direct sponsor of the
project will be the head of operations in the organization, and
this is because he is also concerned about ensuring the customer
satisfaction levels in the organizati on increase. The head of
operations and the CEO are the potential sponsors of the project
since they understand the issue better and are in a good position
to sponsor the project. The main stakeholder that will be
affected by the outcome of the solution is the customers in the
organization. The organization is working towards bettering the
experiences of the customers and after the completion of the
project the customers will be able to enjoy good and high-
quality services from our organization (Uzan, 2020). The
stockholders of the organization will also benefit as a result of
the increase in the overall profits of the company when more
customers start buying from the organization.
Employees could present potential roadblocks to the solution
and this is because not all of the employees will be on board
with change immediately. There is expected to be a certain level
of resistance from employees to the problem solution. This will
be eliminated through meetings to teach the employees the
28. were collected, the source of the data collected, the type of data
(qualitative or quantitative), and a one- or two-sentence
summary of the data findings. Name the Excel spreadsheet as
follows: lastname.firstname.datacollection.xlsx.
Please note that as part of the research process, taking the
initiative to speak with management and then requesting and
reviewing business metrics and operations reports will allow
you to find the data you need for the project while also showing
your employer that you can be proactive and use critical
thinking to solve problems within the organization.
Part 1:
The first step in data collection is to conduct research. You are
looking for specific, measurable data (statistics and numbers)
related to how the problem is affecting the organization. This
information should be recorded in the form of a chart or graph
that presents the data so key decision makers can see the "cost"
of failing to address the problem. Use the study materials for
assistance with creating Excel graphs and charts that can be
used to illustrate your findings.
Part 2:
Next, conduct additional research to learn what has already
been done to address this problem within the organization. Ask
questions and interview individuals who assisted with the
implementation of previous solutions used to address the
problem. Prior to meeting with individuals, develop a list of
questions about previous solutions. Consider factors such as
customer importance, efficiency, quality, employee satisfaction,
and cost effectiveness. You will want to make sure you ask
questions that allow you to gather measurable data and include
information about how successful previous solution options
were in addressing each of the problems. When you have
completed your research, the findings should be summarized in
an illustration using at least one chart or graph that represents
the data you have collected. Use the study materials for
assistance with creating Excel graphs and charts that can be
used to illustrate your findings.
29. Part 3:
The last step in determining potential solutions is to conduct
external research. Using Internet and industry resources,
research ways other companies have addressed this issue or one
very similar to it. Look for specific information related to the
customer response, efficiency, quality, employee satisfaction,
and cost effectiveness of solutions others have implemented.
Find at least five potential solutions you can consider for
solving the problem you have identified. Your goal in
conducting this research is to find practical examples and
measurable data related to how other companies, and related
industries, have resolved the same problem or one very similar
to it. When you have completed your research, the findings
should be summarized in an illustration using at least one chart
or graph, representing the data you have collected. Use the
study materials for assistance with creating Excel graphs and
charts, as this will help illustrate your findings.
Submit the data collection Excel spreadsheet and the three data
summary charts/graphs you have created from the research
conducted to your instructor.
The three charts/graphs you create will be used again in your
Business Proposal Presentation in Topic 7, as well as within the
Final Business Proposal you will submit in Topic 8. Evidence of
revision from instructor feedback will be assessed on the final
business proposal.
General Requirements:
While APA style is not required for the body of this assignment,
solid academic writing is expected, and documentation of
sources should be presented using APA formatting guidelines,
which can be found in the APA Style Guide, located in the
Student Success Center.
This assignment uses a rubric. Please review the rubric prior to
beginning the assignment to become familiar with the
expectations for successful completion.
30. Professor Theodore Sarager
BUS-470
3/10/2022
Guerline P. Joseph
The provision of employees with an appropriate guidance,
techniques, direction, compensation and assets in accordance
with the motivational goal and ensuring they are quick in the
delivery of work in accordance with the specifications of the
employer is the major objective of motivation. Employees are
important organizational assets thus for an employment to grow
there is need to ensure that they remain motivated. Furthermore,
costs associated with the recruitment and maintenance of
employees tend to be reduced significantly and it also aids in
the expansion of vocation if however, employees are retained
for long. Managers ought to possess the capability of ensuring
employees remain motivated. There are numerous instances in
which organizations may face challenges in employee retention
due to the labor market of today that is highly aggressive and
the restricted job opportunities available. Loss of employees is
considered to be a major loss of information, aptitudes and
experience which generate significant financial implications and
costs to a business, inclusive of costs associated with fulfilment
of customers’ needs. Managers that possess strong motivational
techniques may aid organizations through the enhancement if
retention of employees.
Low employee motivation would lead to a poor performance
influenced by slow working pace, spending more time on their
phones, lack of the zeal to be creative among other factors.
Employees would be unfocused if they lacked motivation on
31. their performance. This would lead to underutilization of
resources which would in turn hinder the organization from
performing well and fulfilling their goals. The visions of the
organization would be uncertain. On the other hand, motivated
employees would be more driven, focused and enthusiastic in
performing their assignments. They would be proud in the area
of their production. They would not only be interested for
performing well in their field but also for the advantage of the
organizations. Numerous studies have been conducted on
employee training, reward systems, enhanced job security
independently as rewards for motivation. Other studies have
been conducted in relation to the motivation of employees but
only a few have been conducted in relation to its impact on the
performance of employees. Employees tend to be motivated in
variety of ways and through the use of varied motivational
techniques.
There is thus need to note that different organizations make use
of different techniques of motivation for their employees. The
main issue of the proposal is assessing the relationship between
promotions and rewards on the motivation of employees with
the impacts from the performance in an organization, more
specifically a case study of United Nations. It also seeks to
provide a description of the manner in which motivation
impacts employee performance along with effective strategies
of motivation to facilitate success of an organization.
Employees Department
Years worked in the Organization
The respondents were asked to state the number of years they
had worked in the organization. It was revealed that 54.5%(36)
of the respondent had retained their positions and worked in the
organization for 6-10 years,33.3%(22) had worked in the
organization in their current positions for 11-15 years,6.1%94)
had worked in the organization in their current position for 16-
20 years and 3%92) had worked in the organization in their
current positions for 21 years and above.Furthermore,3%(2) of
32. the respondents did not specify the number of years that they
had worked in the organization and if they had held the same
position throughout their employment at UNICEF,UK.
Therefore, the study revealed that most of the respondents at
UNICEF, UK had worked for the organization for 6-10 years
hence an indication that there is huge employee retention rate.
The years that employees have worked at UNICEF; UK can be
demonstrated by the table below:
Table 4.2 Years worked in the organization
Frequency
Percent
6-10
36
54.5
11-15
22
33.3
16-20
4
6.1
21 and above
2
3.0
No response
2
3.0
Total
66
100.0
33. Impact of monetary factors on the performance of employees
strongly disagree
Disagree
Neutral
Strongly agree
Agree
Count
%
Count
%
Count
%
Count
%
Count
%
Use of monetary rewards
36
54.5%
8
12.2%
22
33.3%
0
0
34. 0
0
Use of non-monetary rewards
0
0
8
12.4%
14
21%
22
33.3%
22
33.3%
Money as an incentive
0
0
8
8.3%
25
37.9%
33
53.8%
Money value
36. disagrees,33.3% were neutral and no one agreed or strongly
agreed. In accordance with the results, it is thus evident that
United Nations (UNICEF) did not make use of Monetary
rewards to motivate its employees. Monetary rewards may
consist of base pay, incentives, bonuses, commission, merit pay
or other forms of allowances. Upon being asked to indicate
whether there was the use of non-monetary rewards in the
process of employee motivation,33.3% agreed and strongly
agrees,21% were neutral while 12.4% disagreed. These results
therefore indicated that the organization utilized non-monetary
rewards in a quest to ensure their employees remain motivated.
Non-monetary rewards consist of decision-making roles,
promotions, recognition, flexible working hours and company
uniforms.
The respondents were also asked to state if they considered
money to be a crucial incentive to motivation to work
harder.55.8% agreed,37.9% strongly agreed whereas 8.3%
disagreed. In accordance with the results, it is thus evident that
money was considered to be a crucial incentive in bolstering the
performance of employees. When asked to indicate whether
there was the use of money value in the performance of the
function of scorecard 57.5% were neutreal,33.3% agreed,6.1%
disagreed whereas 3.0% disagreed. These results therefore
indicated that employees made use of money value as a
scorecard for assessing the value that the organization attached
on the services they provided.
Upon being asked to state whether salaries and other factors of
hygiene triggered dissatisfaction amongst employees,57.5%
strongly disagreed,33.3% disagreed whereas 9.1% were neutral.
This therefore indicated that the salary of the employees and
other hygiene factors are not useful in triggering dissatisfaction
amongst employees. Furthermore,97% of the respondents were
neutral towards the enhancement of the quality of work of
employees as a result of the implemented rewards systems.
Impact of staff training and development on the performance of
employees
38. crucial incentive to work motivation because it is what I can use
to purchase the numerous need- satisfying things I desire5d.The
value of money is used to perform the function of a scorecard
5e.My salary and other hygiene factors have led to a dis-
satisfaction of my employment5f.Our organization has observed
a long-term enhancement on thequality of work as a result of
the reward system in place6a.As an employee, I am not happy
with my job design in terms the tasks that I perform6b.Our
company employs job rotation to help us earn new skills and job
independence6c.Our management increases our responsibilities
with the aim of building our sense of self management and self-
sufficiency6d.I find my job satisfying due to the increased level
of responsibility and the sense of freedom, autonomy and
opportunity to decide what and how I perform my job7a.As an
employee I am trained to acquire and improve my knowledge,
skills and attitudes towards my work. This assures high morale,
sense of security, change management skills and a competitive
edgeMaleCleaning and Cooking6-10 yearsStrongly
disagreeStrongly agreeStrongly AgreeNeutralStrongly
disagreeNeutralDisagreeStrongly disagreeStro ngly
disagreeAgreeStrongly agreeFemaleCleaning and Cooking6-10
yearsDisagreeNeutralAgreeNeutralStrongly
disagreeNeutralNeutralNeutralStrongly disagreeNeutralStrongly
agreeMaleCleaning and Cooking6-10 yearsStrongly
disagreeAgreeAgreeNeutralStrongly disagreeNeutralStrongly
disagreeNeutralStrongly disagreeStrongly agreeAgreeCleaning
and Cooking11-15 yearsStrongly
disagreeNeutralDisagreeNeutralStrongly
disagreeNeutralNeutralNeutralDisagreeAgreeAgreeMaleCleanin
g and Cooking11-15 yearsDisagreeNeutralStrongly
AgreeNeutralStrongly disagreeNeutralDisagreeNeutralStrongly
agreeStrongly agreeAgreeMaleCleaning and Cooking6-10
yearsNeutralDisagreeStrongly AgreeNeutralStrongly
disagreeNeutralNeutralNeutralStrongly agreeStrongly
agreeStrongly agreeFemaleCleaning and Cooking16-20
yearsNeutralStrongly agreeAgreeNeutralStrongly
44. Business Proposal Project Summary
Throughout this course you will be completing an action
research project based on a real organizational problem that you
identify. The assignments for each topic build on one another,
therefore it is important to complete each one. Content from
each assignment will be used to complete the final business
proposal in Topic 8.
There are several parts to the business proposal, and each part
has been explained and briefly outlined below. The descriptions
provided should be used as a guide to assist you with
constructing each section of the business proposal. Word count
guidelines are provided for each section of the business
proposal.
It is important to include specific data throughout the business
proposal. Include statistics that support the problem statement;
can be used to establish and track goals; relate to specifics of
implementation, timing, and cost; and illustrate stakeholder
benefits. Keep in mind that the proposal is an internal document
that will be read by stakeholders within the organization in
which the problem exists. Focus on this audience as you write.
Within the Word document, include subsection titles to organize
the content according to the categories listed below to provide
easy reference points for the reader.
1. Executive Summary (250 words) provides a short summary of
the entire proposal so key stakeholders can see an overview of
the proposal and understand it without reading the entire
document.
2. Purpose Statement (100-250 words) provides clear statement
of why the business proposal is being made.
3. Problem Statement (revised as needed from Topic 1
assignment feedback) includes specific data (statistics and
numbers) related to how the problem affects the business. This
part of the proposal should include the graph/chart/data you
45. collected in Part 1 of the Topic 2 assignment.
4. Data and Research Findings (250-500 words) should include
a summary of what you learned from conducting research
related to what has already been done to address the
organizational problem. This part of the proposal should include
the graph/chart/data you collected in Part 2 of the Topic 2
assignment.
5. Proposed
Solution
(250-500 words) should include a summary of the top three
problem solutions you considered to address the problem. In
addition to including the graph/chart/data you collected in Part
3 of the Topic 2 assignment, this section should provide a
succinct discussion of the pros and cons of implementing each
of the top three solutions being considered to address the
problem.
6. Stakeholder Analysis and Benefits (500 words, revised as
needed from Topic 3 assignment feedback) summarize all data
and information related to the key stakeholders affected by the
proposed problem solution along with a summary of benefits to
be gained by stakeholders if the problem solution is
implemented.
7. Change Management Plan (250-500 words) clearly articulates
specific methods and strategies to be utilized to manage
organizational changes associated with the selected solution
47. Eric A. Heinze and Rhiannon Neilsen
I
t is widely acknowledged that armed reprisals—the limited use
of military
force by a state in response to a prior illegal action perpetrated
against
that state—were formally banned by the UN Charter in
this, states have routinely engaged in the practice and continue
to do so today,
often with little opposition from the international community.
and France launched
more than one hundred missiles at Syrian chemical weapons
facilities in response
to the use of chemical weapons by Bashar al-Assad’s regime
48. against civilians in the
city of Douma. While these airstrikes are more appropriately
characterized as
“third-party reprisals,” since those undertaking the reprisals
were not the actual
victims of the wrongful actions in question, it is noteworthy
that only a very
small minority of the over seventy states that expressed a view
claimed that
these strikes violated international law (including,
unsurprisingly, Syria, Iran,
undertook airstrikes against
a terrorist training camp located in Pakistan in reprisal for a
suicide attack that
killed approximately forty Indian soldiers in Indian-
administered Kashmir almost
49. restraint, this, too, gar-
The advent and proliferation of cyber capabilities has arguably
created further
incentive for reprisals, as state and nonstate actors acquire the
ability to undertake
cyber operations that, legally speaking, may rise to the level of
a use of force or
even an “armed attack,” which would give rise to the right of
self-defense under
–
Press on behalf of the Carnegie Council for Ethics in
International Affairs
50. 175
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Israeli Defense Forces
destroyed a building in which they alleged Hamas was poised to
launch cyberat-
tacks on Israel—therein constituting the first time that a state
has conducted a
kinetic military operation directly in response to an imminent
malicious cyber
51. reprisals,” whereby
an actor resorts to the use of kinetic force in a reprisal against a
hostile cyber oper-
ation, or vice versa. Such a cross-domain reprisal was again
demonstrated by the
United States in response to Iran downing a U.S. surveillance
drone and alleged
attacks on oil tankers near th
United States opted to conduct cyber operations aimed at
disabling Iranian intelli-
gence facilities and missile launch systems, precisely because
such operations were
intended to fall below what wo
Lastly, and most
52. Iranian general Qasem
Soleimani, as well as nine other Tehran-backed militia officials,
at Baghdad
ile the legality of
the strike is still
being debated, the immediate international response from states
and the United
Nations has largely been one of alarm, with fears that the
“assassination of
Soleimani could ignite serious escalation in the region and
The purpose of this essay is to examine the international law of
reprisals in light of
these and other instances of states resorting to military
measures short of war more
generally, paying particular attention to recent developments in
the rules governing
53. hostile cyber operations. The first section examines reprisals in
international lawand
suggests that the ban on reprisals was perhaps never as absolute
as some believe. The
next section examines the developments in the rules of hostile
cyber operations and
recent trends in state practice, and suggests that these may be
further weakening the
ban on reprisals. We conclude with a discussion of the dangers
that eroding this ban
may present, especially in an era of increasing weaponization of
cyber capabilities.
The Ban on Reprisals
The contemporary doctrine of armed reprisals has its origins in
the ancient practice
of “private reprisals.” During the Middle Ages, private
54. individuals were empowered
by “letters of marque and reprisal” to undertake acts of self-
help against foreign
states or their citizens as a means to recover damages incurred
by some wrongful
seventeenth century, with
the increasing role of the state and the rise of state
responsibility, private reprisals
176 Eric A. Heinze and Rhiannon Neilsen
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55. were generally tolerated less, while public reprisals emerged as
an important means
of self-help, short of war, for states to address and deter
wrongful acts conducted
against them. Further, throughout the eighteenth and nineteenth
centuries, since
the right of states to use force was generally understood to be
fairly unlimited, it
was thought that the right to armed reprisals was also unlimited.
This led some
commentators to conclude that there was little basis to
distinguish between war
and reprisals, as their legality was not in question—at least not
until the emergence
56. –
placing certain lim-
itations on states’ ability to resort to force, it was during this
period that the first
coherent doctrine of reprisals emerged. The so-called Naulilaa
Arbitration
incident involving
a German reprisal against Portuguese military positions in
present-day Angola, is
understood to have established the customary criteria for lawful
armed reprisals of
violation of international
have been an
attempt by the claimant state to obtain reparation or redress for
57. the alleged
wrong by peaceful means (and such an attempt must have failed
or been inappro-
reprisal must have been
proportionate to the original harm done by the ta
Although it appears reprisals were not entirely forbidden during
the League of
practice in international
using force (Art
-authorized enforcement
operation or at the
invitation of the state in question, or if they are acting in self-
defense against
58. not all uses of force rise to the level of an armed attack; “only
the most grave
uses of force” are grounds for invoking the right to self-defense,
whereas lower-
level military actions that do not meet the “scale and severity”
threshold of an
armed attack are not legal grounds for resorting to self-
even if a state is the victim of the unlawful use of force, if that
use of force
does not rise to the level of what is considered an armed attack,
the victim
state may not respond in kind with proportionate force. Such an
act would be con-
sidered an unlawful reprisal, or a “forcible countermeasure.”
59. This interpretation of
the Charter is supported by numerous UN documents,
resolutions by UN bodies,
expert opinions, and opinions of in
limited force and the return of reprisals in the law of armed
conflict 177
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n
to emerge in the con-
ditions under which the UN Security Council was willing to
60. condemn certain
instances of reprisals. In essence, those reprisals receiving
criticism by the
Council were denounced on the basis of their disproportionality,
targeting of civil-
ian assets, or the observation that they primarily served a
punitive vs. deterrent
reprisals were
more readily condemned by the Council during this period than
others, suggest-
ing that it was not the reprisals themselves that were drawing
condemnation, but
the fact that some did not meet the criteria for what members of
the Council
believed was acceptable. While certainly driven by prevailing
political realities
61. of the time, Bowett nevertheless saw international law evolving
in such a way
that “reprisals remain illegal de jure, [but] become accepted de
facto,” at least if
Bowett and other skeptics of the ban on reprisals advanced their
claims in the
context of a UN collective security system that had been unable
to consistently and
effectively enforce a system of collective judgment and
enforcement, causing states
to rely on self-help more than the framers of this system had
known, the UN Charter originally envisaged the right of states
to use force in self-
62. only to the victim state
until the collective security mechanisms of the UN could be
activated, and a mul-
tilateral force could be dispatched. Relatedly, collective
enforcement under
Chapter VII of the Charter was supposed to be implemented
according to
armed forces
and military facilities available to the UN Security Council “on
its call” to main-
not how the lawful
practice of self-defense occurs today. Rather, self-defense
remains the purview of
states, while collective enforcement under Chapter VII relies on
states voluntarily
63. acting on behalf of the UN. Since the Council is not able to
consistently and effec-
tively enforce these elements of the collective security system,
states have unsur-
prisingly resorted to self-help, including reprisals.
The International Court of Justice (ICJ) has also suggested
certain qualifications
in the ban on reprisals. In the Military and Paramilitary
Activities in and Against
Nicaragua case (Nicaragua v. United States of America)
—which is often
cited as evidence in support of the ban on reprisals—the United
States argued
that its use of force against Nicaragua was an act of collective
self-defense primar-
ily on behalf of El Salvador, which had been attacked by
64. insurgents who were
178 Eric A. Heinze and Rhiannon Neilsen
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supposedly armed and equipped by Nicaragua. However, the
court concluded that
uses of force that do not amount to an armed attack (in this
instance, Nicaragua’s
alleged assistance to Salvadorian insurgents) do not sanction
collective measures
involving the use of force, but only permit nonforcible
65. countermeasures on the
part of the victim state. In this case, therefore, the use of force
by the United
States against Nicaragua on behalf of other states was
ruled that “States do not have a right of ‘collective’ armed
response to acts which
t is not clear
whether the court was
saying that the United States acted illegally because forcible
reprisals are illegal,
or because the United States was not itself the victim of an
unlawful act by
Nicaragua, and therefore had no right to act on behalf of the
victim state.
Describing this ambiguity, Tom Ruys claims that “it is rather
flabbergasting that
66. the Court flags a crucial potential gap in the rules on the use of
force, which
would seem to be prima facie” at a disjuncture with the existing
international
laws on use of force and self-
The more recent Oil Platforms case (Islamic Republic of Iran v.
United States of
whether armed reprisals
may ever be lawful. In this case, the court refused to address
whether the
United States acted lawfully when it attacked three Iranian oil
platforms in
response to an Iranian naval mine severely damaging a U.S.
Navy ship, thus miss-
ing an opportunity to settle the legal status of reprisals in
67. international law. In a
separate opinion, Justice Bruno Simma left the door open for
reprisals, interpret-
ing the ruling in Nicaragua as limiting the collective use of
force, such that self-
defense may be undertaken individually or collectively, wher eas
reprisals may
concluded that in response
to lower-level hostile actions, such as the naval mines deployed
by Iran, states
would be entitled to undertake “proportionate
countermeasures.” Simma argued
that the court in Nicaragua could not have understood this to
mean “mere pacific
reprisals,” but should have rather interpreted it as “defensive
military action ‘short
68. of’ full-scale self-defense”—
In short, states’ interpretation of and commitment to the
illegitimacy and ille-
gality of reprisals is not as concrete as once thought.
Nevertheless, the increasingly
permissive international climate pertaining to reprisals has also
been facilitated by
the rules, attitudes, and activities undertaken in what is now
considered to be the
fifth domain of war. Cyberspace, as a new avenue through
which states and non-
state actors alike can conduct hostile operations, is influencing
the return of
limited force and the return of reprisals in the law of armed
conflict 179
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reprisals in a profound way, in terms of both the rules
applicable to cyberspace
and the state conduct pertaining to cyber operations in recent
years. At the
core of this apparent erosion are the Tallinn Manuals.
Developments in the Rules and Attitudes regarding
Hostile Cyber Operations
Responding to an increase in malicious cyber activities, the
NATO Cooperative
70. Cyber Defence Centre of Excellence invited a group of
international legal experts
(hereafter referred to as the “experts”) to shed light on how
cyber operations ought
—known
as the Tallinn
Manual —are the
most internationally
renowned sources on international law applicable to cyber
warfare and cyber
themselves legally bind-
ing, but rather constitute “an expression of the opinion of the
two International
there are also a huge
number of other excellent works that examine cyber operations
71. in light of the
owever, the Tallinn
Manuals boast the
insights of legal experts from countries around the world
(including, to name a
few, Belarus, China, Israel, Thailand, and the United States), in
areas ranging
from human rights law to space law, and with observers from
nongovernmental
organizations such as the International Committee of the Red
the sheer breadth of expert insight and legal peer review in
considering the law
applicable to cyberspace, the findings of the two Tallinn
Manuals are thus deserv-
ing of attention.
72. A pillar of both of the Tallinn Manuals is that, for the purposes
of determining
whether an act qualifies as a “use of force” or an “armed
attack,” they do not make
a distinction between a malicious cyber operation or a kineti c
operation, so long as
with the ICJ’s under-
standing of international customary law pertaining to “any use
of force, regardless
context, according to the
whether the use
of force threshold has been crossed, but rather . . . the
consequences of the oper-
73. state falls victim to a
cyber operation that qualifies as an armed attack, that state can
lawfully resort
to (collective or individual, cyber or kinetic) self-defense
measures pursuant to
180 Eric A. Heinze and Rhiannon Neilsen
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any certain terms,
however, is what a state may lawfully do if it is affected by a
74. cyberattack that falls
short of qualifying as an armed attack.
Addressing countermeasures specifically, all of the experts
contributing to the
customary law, countermea-
sures (cyber or otherwise) must not rise to the level of an armed
the experts then become divided over whether a countermeasure
that crosses the use
of force threshold, but does not reach the level of an armed
attack, would be consid-
conventional view that
the “injuredstate” is not permitted to respond to thewrongful
actperpetrated against
75. impose countermeasures
against the offending state in such a way that suspends its legal
obligations to that
state, but only to the end of inducing the offending state to re-
comply with its
conventional view,
is the injured state permitted to resort to even a proportionate
use of fo
maintain that there is
an obligation on the part of the injured state to refrain from
using “forcible
explicitly notes that
76. State Responsibility
and maintains the jurisprudence of the International Court of
A small number of the Tallinn Manual experts, on the other
hand, adopt the view
that an injured state could resort to “forcible countermeasures,”
cyber or otherwise,
in response to a wrongful use of force, so long as those forcible
countermeasures sat-
the Tallinn Manual
perts’ reasoning was hinged on the logic that an
injured state would be
otherwise denied of a proportionate response by being restricted
to measures that
necessarily fall below the use of force. Indeed, these experts
(who, again, represent
77. only a minority) took their lead from Justice Simma’s separate
opinion pertaining to
the Oil Platforms case, and explicitly cited this as influencing
As a consequence of this disagreement and division, the Tallinn
provides “no such limitation”—that is, the obligation of injured
states to refrain
from using forcible countermeasures—in its rules on
Whereas existing international law holds fast on the view that
countermeasures
must not entail the use of force, recent developments in the
view of international
law applicable to cyberspace leave this open for debate. In other
words, because
78. explicitly outline
limited force and the return of reprisals in the law of armed
conflict 181
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whether a forcible countermeasure, cyber or otherwise, in
response to an initial
use of force, would be considered unlawful. By deciding to
refrain from including
rearticulate and
79. recommit to a hard ban on countermeasures that rise to the level
of a use of
force—in other words, the ban on reprisals.
This point of contention is particularly concerning because, by
the experts’ own
reasoning, there is no distinction between cyber or kinetic
operations, as long as
the scale and severity are commensurate to the extent to which
the act can be
regarded as a “use of force” or an “armed attack.” As such,
states might feel at lib-
permitting both cyber and
noncyber forcible countermeasures in response to both cyber
and noncyber uses
of force. This problematically paves the way for states to
80. respond to cyber uses
of force with traditional kinetic uses of force.
An example of this, noted earlier, is the decision by the Israel
Defense Forces
(IDF) to airstrike a building where a Hamas cyber operation was
allegedly under-
way.
tweeted, “CLEARED FOR
RELEASE: We thwarted an attempted Hamas cyber offensive
against Israeli tar-
gets. Following our successful cyber defensive operation, we
targeted a building
where the Hamas cyber operatives work. HamasCyberHQ.exe
has been
reprisal, since it took
81. place in the context of ongoing hostilities between Israel and
Hamas (in other
words, a “belligerent reprisal”), and it sought to thwart a
suspected cyber opera-
tion, thus potentially qualifying as an anticipatory reprisal.
Nevertheless, it high-
lights the problematic potential for states to resort to force in
response to even a
suspected cyberattack. The softening on the view of forcible
countermeasures
states believe that
they are permitted to resort to forcible countermeasures (at least
insofar that
their actions will fail to elicit widespread international
condemnation), then this
is likely to continue to erode the ban on reprisals. Traditional
82. forcible countermea-
sures are then likely to become easier to contemplate and
countenance, ipso facto,
thereby risking retaliation and escalation.
Conclusion: Dangers of the Return of Reprisals
When subjected to a use of force, states have an array of pacific
actions that they
may lawfully resort to under the category of
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83. https://www.cambridge.org/core
international law has overturned the obligation of states to
refrain from using
force unless authorized by the UN Security Council or in self-
defense under the
We are not suggesting anything to the
contrary. Our
point is that recent interpretations of international law, as
evidenced by Justice
Simma in the Oil Platforms case and the expert opinions in the
Tallinn
Manuals, as well as recent state breaches of the law (which have
been met with
feeble international condemnation), highlight that the ban on
reprisals is in a frag-
ile and fractured state.
84. Each of the cases introduced at the outset of this paper have
their own respec-
tive complexities. For instance, the airstrikes by the United
States, the U.K., and
France in Syria technically qualify as a “third-party reprisal”
and the case is further
complicated by humanitarian considerations. India’s reprisals
were against the
militant group Jaish-e-Mohammed, a nonstate actor not bound
by international
law but nonetheless based in Pakistan, and Israel’s missile
strike against Hamas
occurred prior to the alleged hostile cyber operation. Yet if we
consider Justice
Simma’s view that proportionate countermeas ures could include
“defensive mili-
85. limitation on forc-
ible countermeasures, it is conceivable that each of these
reprisals could be
interpreted as permissible. This is because the mere fact that
they qualify as forc-
ible countermeasures does not, according to these views, call
for concern, as long
as the forcible countermeasures adhere to other legal
requirements, such as pro-
portionality. Indeed, it is debatable whether Israel’s choi ce to
conduct airstrikes
was proportionate to a suspected imminent use of cyber force; it
is likewise debat-
able whether Pakistan’s decision to shoot down two Indian
warplanes was propor-
tionate with India’s own reprisal against a nonstate actor.
86. Nevertheless, the fact
that these forcible countermeasures were taken in response to a
threat or use of
force is not, ostensibly, that with which Justice Simma or the
Tallinn Manual
The example discussed in this paper that would be most
appropriately viewed as
a lawful countermeasure is the U.S. decision to employ
offensive cyberspace oper-
United States was
reportedly “cocked and loaded” for a missile attack against
military sites in
Iran, but such a reprisal was reportedly called off by U.S.
president Donald
87. personnel was “not propor-
United States chose
to launch cyberattacks against Iranian facilities precisely
because—as the head of
limited force and the return of reprisals in the law of armed
conflict 183
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the U.S. Cyber Command insisted—these operations are
“calibrated to stay well
88. governing cyber
operations, as illustrated by the experts’ opinions in the Tallinn
-
gest that these actions may still be considered a use of force if
the cyber actions
produce results similar in “scale and effect” to a kinetic use of
force. This response
is in itself concerning because it would suggest that Iran could
have interpreted
malicious cyber operations conducted by the United States as a
use of force. If
Iran interpreted the actions in this way, then, according to at
least some of the
in proportionate
89. forcible countermeasures, cyber or otherwise. Again, it is
contentious whether
the consequences of the U.S. cyber operation could be
considered to be on par
with a kinetic missile strike. But by lowering the bar for
resorting to forcible coun-
termeasures in response to an initial use of force, these
developments necessarily
increase the risk of retaliation and the likelihood of escalation.
Such developments
are therefore dangerous because they hint at, as Shane Darcy
puts it, “a reinstate-
ment of the doctrine of armed reprisals, [which] would
undermine the established
rules of international law on the use of military force and
facilitate unilateral resort
to force that would actually threaten international peace and
90. As both Brunstetter’s and Pearlman’s contributions to this
roundtable suggest,
there are sound moral and strategic reasons for resorting to
limited strikes vs. wag-
ing actual war, insofar as we assume that a state’s intention in
using a limited
en if we
agree that limited
force is less likely to result in escalation than actual war,
applying the principle
of the “probability of escalation” in the practice of limited use
of force “is plagued
t, even
if the intention of a
state is to limit escalation by opting for limited strikes, whether
the situation esca-
91. lates is ultimately not up to that state, but rather the target state.
This places a lot
of faith in an entity that is already assumed to be untrustworthy
and unpredictable
to accurately interpret the limited nature of the strike as an
indication of a desire
not to escalate, and to act accordingly. As Robert Jervis reflects
in the context of
the limited U.S. strike that killed Soleimani: “The success of
coercion depends on
the adversary’s choices. . . . Iran may choose acquiescence as
the path most in its
Second, we should be cautious in assuming that the absence of
(immediate)
escalation is because the states involved accurately interpret the
92. limited strike as
a mechanism intended to avoid escalation. Such an outcome
could just as easily
184 Eric A. Heinze and Rhiannon Neilsen
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be a result of the power asymmetries that characterize most of
the examples of
limited force examined in this roundtable, wherein the weaker
party knows that
it would suffer far more if the situation escalated. In this sense,
93. if reprisals are
back on the table as a policy option, they are seemingly a tool
primarily at the dis-
posal of the powerful against the weak. It is likely that they
would be more prone
to escalate in less asymmetrical disputes.
Third, and owing to this, weaker states may thus calculate that
they are more
able to compete by resorting to cyber operations. But again, the
deployment of
cyberattacks is replete “with multiple opportunities for
misunderstandings and
miscalculations,” which could produce unforeseen effects, and
result in mounting
above, cyber opera-
94. tions could reasonably be interpreted as entailing a use of force,
even if states
launch them to explicitly avoid escalation. In such cases, states
may then find
themselves the targets of kinetic force in reprisal or retaliation.
Not only does contemplating limited strikes as a tool for
conflict settlement chip
away at the restrictions on the resort to force, it erodes the
obligation that states have
to resolve their disputes peacefully and normalizes this sort of
violence in interna-
tional politics. The emphasis in international politics should
remain on exploring ave-
nues for peaceful recourse to tensions and acting earlier in
response to humanitarian
emergencies—not lowering the bar for the resort to violence,
albeit short of war.
95. Such developments are further troubling considering recent
developments in
the use of force against nonstate actors, wherein governments
and commentators
increasingly recognize that nonstate actors no longer need to be
under the “effec-
tive control” of a state in order to undertake an armed attack for
the purposes of
broad right to use self-
defensive force against nonstate actors in the territory of
another state, even with-
out the state’s permission if the state is “unable or unwilling” to
neutralize the
the
96. -Qaeda in the
territory of Afghanistan
without the country’s permission. Since that time, numerous
other states (includ-
ing Colombia, Ethiopia, India, Kenya, Russia, and Turkey) have
adopted a similar
view to justify their own uses of force against hostile nonstate
groups operating in
against the Islamic
the law, which was
endorsed by the UN Security Council and declared by some to
be a “Grotian
Combined with the
limited force and the return of reprisals in the law of armed
97. conflict 185
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normalization of reprisals and the proliferation of cyber
capabilities, such an inter-
pretation of international law stands to significantly increase
the situations in
which states feel they have the right to target nonstate actors
located in other states
with either cyber or kinetic force.
Our concern in this paper is that the weakening of the ban on
98. reprisals, in tan-
dem with other developments pertaining to uses of cyber force
and self-defense
normative-legal environment
in which states are more likely than before to resort to uses of
force over contin-
situations ripe for
escalation. Suggesting that states may resort to force in reaction
to an initial unlaw-
ful use of force (cyber or otherwise) not only precariously
dilutes the prohibition on
reprisals but also threatens to dissolve the distinction between
99. violence. An erosion of
this safeguard, facilitated by the return of reprisals, is thus a
dangerous development
in light of the uncertainty involved in resorting to even limited
uses of force and the
high costs of further destabilizing the international order.
NOTES
N.J.: Lawbook Exchang
Syria Airstrikes Changed International Law
Relating to Humanitarian Intervention,” Chicago Journal of
The Popular but
Unlawful Armed Reprisal,” Ohio
–
100. -for-tat retaliations between
India and Pakistan. See “Balakot: Indian
Air Strikes Target Militants in Pakistan,” BBC News, February
-
asia-
in Wake of Kashmir Attack,” UN News,
International Law Applicable to Cyber Operations,
thwarted an attempted Hamas cyber offensive
against Israeli targets. Following our successful cyber defensive
operation, we targeted a building . . . ,”
Maggie Haberman, “Strikes on Iran Approved by
101. Trump, Then Abruptly Pulled Back,” New York Times, June
Gibbons-Neff, “U.S. Carried Out Cyberattacks on Iran,” New
-iran-cyber-attacks.html.
“Statement by the Department of Defense,” Defense.gov,
-by-the-department-of-defense/source/-
GovDelivery/; Michael Crowley, Falih Hassan, and Eric
Schmitt, “U.S. Strike in Iraq Kills Qassim
Suleimani, Commander of Iranian Forces,” New York Times,
-soleimani-iraq-
iran-attack.html; and Stefan Talmon and
Miriam Heipertz, “The U.S. Killing of Iranian General Qasem
Soleimani: Of Wrong Trees and Red
Herrings, and Why the Killing May Be Lawful after All” (Bonn
Research Papers on Public
186 Eric A. Heinze and Rhiannon Neilsen
102. https://www.cambridge.org/core/terms.
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https://www.bbc.com/news/world-asia-47366718
https://www.bbc.com/news/world-asia-47366718
https://www.bbc.com/news/world-asia-47366718
https://www.bbc.com/news/world-asia-47366718
https://news.un.org/en/story/2019/02/1033151
https://news.un.org/en/story/2019/02/1033151
https://news.un.org/en/story/2019/02/1033151
https://news.un.org/en/story/2019/02/1033151
https://news.un.org/en/story/2019/02/1033151
https://news.un.org/en/story/2019/02/1033151
https://twitter.com/IDF/status/1125066395010699264
https://twitter.com/IDF/status/1125066395010699264
https://twitter.com/IDF/status/1125066395010699264
https://twitter.com/IDF/status/1125066395010699264
https://www.nytimes.com/2019/06/22/us/politics/us-iran-cyber-
attacks.html
https://www.nytimes.com/2019/06/22/us/politics/us-iran-cyber-
attacks.html
107. says-us-is-entitled-to-defend-itself-following-
iraq-attack-
during Intermediacy—A New Framework
for Analy
Redux,” Case Western Reserve Journal of
–
Corfu incident, concluded that reprisals “may or may not be”
consistent with the Covenant of the
League of Nations. The Permanent Court of International
Justice also characterized reprisals as an
Law passed a resolution indicating that
armed reprisals were restricted similarly to all recour se to
war—restricted but not entirely banned.
108. See Shane Darcy, “Retaliation and Reprisal,” in Marc Weller,
ed., Oxford Handbook on the Use of
–
Against Nicaragua (Nicaragua v. United
e to Article
International Law concerning Friendly Relations and Co-
Operation among States in Accordance
Law of Nations: An Introduction to the International Law of
Peace (New York: Oxford University
advisory opinion, “Legality of the Threat or
prisals involving Recourse to Armed
Force,” American Journal of International Law