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in similarities from kinetic military force, economic coercion, espionage, or even subversion. In testimony at his confirmation hearings before the Senate, Lieutenant General Keith Alexander explained, “there is no international consensus on a precise definition of a use of force, in or out of cyberspace. Consequently, individual nations may assert different definitions, and may apply different thresholds for what constitutes a use of force.”[237] Some scholars and policymakers have emphasized the need for clarity in the interpretation of Article 2(4) and Article 51 as they apply to cyber attacks.[238] For government officials considering the use of active cyber defense measures, clarity on these issues would be critical. Government officials need to know the legal bounds of the actions that they are contemplating.[239]

In July 2011 the US government publicly articulated a general position on cyber attacks and Article 2(4) and Article 51, and the Department of Defense unveiled its unclassified version of its Cyber Strategy.[240] While the unclassified version was general in its descriptions of DoD initiatives to counter cyber threats, a discussion of the strategy in a Wall Street Journal article—in which US military officials were cited as sources—provided the more interesting context to the US position on cyber attacks and the UN Charter provisions. According to the sources, the Pentagon has articulated the concept of “equivalence” to decide when a cyber attack would trigger a conventional response.[241] If a cyber attack were to result in death, damage, or a high level of disruption similar to that of a conventional military attack, then it could be grounds for a conventional response. In releasing the strategy, Deputy Defense Secretary William Lynn stated, “The United States reserves the right, under the laws of armed conflict, to respond to serious cyber attacks with a proportional and justified military response at the time and place of its choosing.” Through its announced strategy, the US government has clarified its thinking on cyber attacks and Article 2(4) and Article 51 of the UN Charter. There could be cyber attacks against the United States and its infrastructure (i.e., the electric grid) that the government would interpret as “armed attacks,” therefore triggering the right to respond with force, through conventional or cyber means. Both academic and policy experts have supported this idea of assessing the legality of cyber attacks based on the effects of the actions taken.[242]

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[232] UN Charter, article 2, paragraph 4.

[233] Id. Article 51.

[234] Anthony Clark Arend and Robert J. Beck, International Law and the Use of Force (Routledge).

[235] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) International Court of Justice 14, (June 27, 1986): 202.

[236] Tom J. Farer, “Political and Economic Coercion in Contemporary International Law,” American Journal of International Law 79 (1985): 405.

[237] Advance Questions for Lieutenant General Keith Alexander, USA Nominee for Commander, United States Cyber Command: Before the US Armed Services Committee, 111th Congress 11 (April 15, 2010).

[238] James A. Lewis, “Multilateral Agreements to Constrain Cyberconflict,” Arms Control Today, June 2010, p. 16.

[239] Christopher C. Joyner and Catherine Lotrionte, “Information Warfare as International Coercion: Elements of a Legal Framework,” European Journal of International Law 12 (2001): 825, 863–64.

[240] US Department of Defense, Department of Defense Strategy for Operating in Cyberspace, July 2011.

[241] Siobhan Gorman and Julian E. Barnes, “Cyber Combat: Act of War,” Wall Street Journal, May 31, 2011.

[242] Michael Schmitt, “Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework,” Columbia Journal of Transnational Law 37 (1999): 885, 914–15; NRC Committee Report, at 33–34; Richard A. Clarke and Robert K. Knake, Cyber War: The Next Threat to National Security and What to Do About It (Ecco), p. 178; James