Amicus Curiae Brief of Amici Professors of International Law to Provide the Court with Additional Context for Interpreting the War Exclusion

Abstract

Amici Professors of International Law submitted this brief to provide the Appellate Division of the New Jersey Superior Court with additional context for interpreting the War Exclusion in the insurance policies at issue in Merck v. ACE American Insurance Co., and to explain the potential legal and policy consequences of a judicial determination that the NotPetya malware incident was a “hostile” or “warlike” action. International law and the U.S. government’s official legal pronouncements do not support such a characterization.

The terms “war” and “hostilities” are terms of art that have long been understood as describing the use of armed force between rival states. The U.S. government has been careful not to broaden the legal definitions of these categories, despite the advent of various types of malicious cyber activity. Characterizing an act as a “use of force” or an “armed attack” carries legal and diplomatic consequences that can lead to unintended escalation of inter-state conflict. Courts should be mindful of these consequences when interpreting these legal terms.

Amici offered two main observations to assist the Court in its interpretive task. First, the phrase “hostile or warlike action . . . by any government or sovereign power” uses terms that are rooted in international law and evoke international armedconflict. Second, a judicial determination that ransomware, or malware that mimics ransomware, amounts to “hostilities” or “war” risks conflicting with the U.S. government’s consistent characterization of such activity as criminal rather than warlike.