Unfortunately, warfare has been part of the human experience for centuries and even millennia. Historically, wars were fought on the ground between individuals. Often, in more recent times, mass physical destruction has been caused from a distance, with bombs dropping from planes and missiles launched from remote locations.
And now, in the Internet age, wars can be waged electronically by purposely disrupting mission-critical systems of a perceived enemy state. Damages caused by such disruptions could be quite high, but there are potential international mechanisms by which such damages could be awarded.
'Conventional' War Reparations
To understand that point, let's use an example from the direct physical invasion of Kuwait by Iraq in 1990. As you likely will recall, Kuwait's oil fields were set ablaze, resulting in tremendous loss of oil assets and significant environmental harm.
The United Nations Compensation Commission (UNCC) was set up in 1991 as a subsidiary organ of the UN Security Council. Its mandate has been to handle claims and compensate losses caused by Iraq's invasion of Kuwait.
The UNCC's Governing Council has addressed six categories of Iraqi invasion-related claims: four for individuals' claims, one for corporations and one for governments and international organizations (which includes claims for environmental damage).
There have been claims made for loss of property, harm to and loss of natural resources, environmental damage, harm to public health and death. In total, the UNCC has handled nearly 3 million claims stemming from Iraq's invasion of Kuwait.
Amounts paid for successful claims are drawn from the UN Compensation Fund. This Fund is financed by a percentage of the proceeds created by export sales petroleum and related products from Iraq.
The UNCC has just authorized $1.03 billion to be made available to the Government of Kuwait as a result of the harm caused by the Iraqi invasion, according to a recent United Nations press report. This reportedly brings the total amount of damages distributed by the Commission to $44.5 billion with respect to the 1.5 million prevailing claims by individuals, corporations, governments and international organizations relating to the damages caused by the invasion.
Redress for Cyberwar?
Hopefully, a mass tragedy caused by a "cyberwar" initiated by one state against another will not occur. But, regrettably, it is a possibility.
If that happens, just like the UNCC was set up to process and redress claims relating to the Iraqi invasion of Kuwait, perhaps a similar subsidiary organ of the UN Security Council could be established to do the same thing in the aftermath of a major cyberwar event.
However, it could be more complicated and difficult in this latter context. What if the cyberwar event is not actually launched by a recognized state, but instead by a terrorist group? Even if the UN Security Council could set up a potential body to deal with the cyberwar's aftermath, how effective would it be, and would there be resources available (like revenues from Iraqi petroleum sales) to pay down claims?
Let's cross our fingers that major cyberwarfare will not erupt and that we will not have to find answers to these questions.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
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