Inside Cyber Warfare - Jeffrey Carr [35]
In the first place [countermeasures] must be taken in response to a previous international wrongful act of another State and must be directed against that State.
Secondly, the injured State must have called upon the State committing the wrongful act to discontinue its wrongful conduct or to make reparation for it.
Third, the effects of a countermeasure must be commensurate with the injury suffered.[6]
Since states may not use force contrary to Article 2(4) of the UN Charter, economic and political coercion are the two main forms of reprisals. However, the consensus among international scholars is that this really only amounts to a prohibition against armed force. Therefore, reprisals could also include the use of limited cyber attacks. Although this chapter contends that states should deal with cyber attacks using self-defense and anticipatory self-defense legal principles, reprisals provide an important alternate theory for dealing with cyber attacks to those who contend that cyber attacks fall short of the armed attack threshold.
The general framework of jus ad bellum discussed so far has primarily evolved in response to state-on-state attacks. When attacks are carried out by nonstate actors across state borders, it complicates the framework governing state responses to the attacks. Since most cyber attacks are carried out by nonstate actors, this chapter will explore jus ad bellum in greater depth and explain the intricacies of state responses to attacks by nonstate actors.
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[5] Schmitt, M. 2003. “Preemptive Strategies in International Law.” Michigan Journal of International Law: 24, 513–34.
[6] Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 55–56 (Sept. 25) (Merits).
Nonstate Actors and the Law of War
As a general rule, international law treats each state as sovereign and forbids each state from waging war against or intervening in the domestic affairs of another. While a state gives up these rights when it attacks another state, it cannot be said to give up these rights just because individuals located within it choose to commit criminal acts against another state. Consequently, international attacks by nonstate actors complicate the general framework of jus ad bellum.
Although jus ad bellum has always provided some guidance for attacks by nonstate actors, historically the guidance it provided was scant. However, the rise of transnational terrorism challenged traditional norms of jus ad bellum and forced states to expand traditional norms to cope with attacks by nonstate actors. Today, jus ad bellum provides states with a robust framework for analyzing attacks by nonstate actors.
To understand whether states can respond to cyber attacks against them with force, an analysis of the underlying law governing attacks by nonstate actors must be undertaken. It starts with an analysis of whether armed attacks by nonstate actors fall under the law of war, continues with the duties states have to one another concerning nonstate actors within their territory, then moves on to ways to impute state responsibility for the acts of nonstate actors, and ends with the legality of cross-border operations against states.
Armed Attacks by Nonstate Actors
Although the issue of armed attacks by nonstate actors was not envisioned in the drafting of the UN Charter, customary international law has evolved to allow states to apply the law of self-defense to attacks by nonstate actors. The international community’s response to the 9/11 terrorist attacks crystallized the validity of this principle.
Following the 9/11 attacks, the UN Security Council passed Resolution 1368, which reaffirmed the United States’ inherent right to engage in self-defense in accordance with Article 51 of the Charter. Two weeks later, when it was clear that Al Qaeda was behind the attacks, the Security Council passed Resolution 1373, once again reaffirming the United States’ inherent right of self-defense. These resolutions are particularly significant because the 9/11 attacks