Conventional military force as a response to cyber capabilities: on sending packets and receiving missiles.
I. INTRODUCTION A. Threat Background B. The Real Question II. INTERNATIONAL LEGAL REGIME ON THE USE OF FORCE A. UN Charter 1. Article 2(4) 2. Article 51 (a) Nicaragua Case (b) Congo Case (c) Oil Platforms Case B. Acts of Aggression C. Countermeasures D. Principle of Non-Intervention III. ALTERNATIVE SCENARIOS FOR PERMISSIBLE CONVENTIONAL MILITARY RESPONSE A. UN Security Council Authorization 1. Security Council Process 2. Security Council Geopolitics B. Use of Force in Self-Defense in Response to an Armed Attack C. Employment of Countermeasures IV. CONCLUSION
Malicious cyber activity has been on the rise throughout the last two decades, and international government attention on those attacks has progressively increased. Midway through that timeline, in 2005, the Government Accountability Office warned that the federal government had failed to fully address 13 Presidentially-required categories of responsibility to the civilian cyber infrastructure. (1) This report was a message to Congress, and was intended to spur action in formulating a cohesive national strategy for the cyber defense of the different networks primarily owned and operated in the United States. That call to develop a strategy was felt not just in the Congress of the United States of America, but throughout the developed world as cyber intrusions increased. For some, both in legislative bodies and academia, the resultant strategy involves potentially answering cyber-only threats with the use of conventional military force.
A. Threat Background
When 2014 started, there were over 3 billion people online, amounting to a greater than 500 percent increase since the year 2000. (2) While 500 percent might seem a notable amount itself, internet malicious activity had increased even more rapidly. In 1990, there were only four known computer viruses; by the end of 2012, there were over 5,000 known computer viruses, with 110 new viruses appearing each month since that time. (3) With access to, and activity on, the internet at an all-time high and still increasing, global political initiative in the area of effective government cyber response capabilities arguably lags well behind the pace at which the technology evolves. This is made obvious by the news of successful malicious activity more prominent and more frequent than that of successful security initiatives or government actions.
While the growing threat is one of understandably international character, based at least in part on nothing more than the trans-border nature of internet technology, a majority of what makes international headlines is malicious cyber activity initiated against only the United States. Targeting both individuals and corporations (not to mention government institutions), this activity has been steadily progressively successful; attacks on intellectual property alone cost the United States billions of dollars per year, and this amount is rising each year. (4) General Keith Alexander, while serving as both the Commander of USCYBERCOM and the Director of the National Security Agency, stated that cyber attacks on key United States infrastructure had seen a 17-fold increase between 2009 and 2011. (5) General Alexander also made a bold statement by going on record and estimating that, on his own perceived scale of 1 to 10, when it came to capabilities in responding to major cyber attacks the United States rated "around a 3." (6) Rhetoric from the United States has been at times even more extreme than this, most notably in October of 2012 when Secretary of Defense Leon Panetta famously cautioned against the forthcoming "cyber-Pearl Harbor." (7) In 2013, however, not long after Leon Panetta had made his dire prediction, PNC Financial, SunTrust Banks, and BB&T Corp took the unusual step, for an industry that appears to value privacy and freedom from regulation, of asking the government to "stop or mitigate the [cyber]attacks" they were suffering. (8)
While the United States has made an abundance of news relating to this international phenomenon, on a practical (rather than predictive) scale, other nations have likely fared much worse. In January 2011, Defense Research and Development Canada was hacked, with the government admitting that classified "data has been exfiltrated" and "privileged accounts have been compromised." (9) There were over 30,000 computers physically destroyed in one fell swoop as the result of a coordinated cyber assault on Saudi Aramco in 2012. (10) That damage to the computers and their systems disrupted output from the world's second leading oil-producing nation. (11) India's Eastern Naval Command lost classified data in a 2012 hacking scheme that potentially included information regarding "trials of the country's first nuclear missile submarine, INS Arihant, and operations in the South China Sea. (12) The Royal Bank of Scotland, 81% government-owned, sustained a serious attack in December 2013 when 465,000 customers were frozen out of their accounts. (13) February 2014 saw 15 Israeli Defense Force computers hacked, and among the systems compromised were those that administer the issue of passes for travel into and out of Israel by Palestinians. (14)
These apocalyptic government predictions and nefarious real-world events are forcing governments to consider just how far they will go in response to the increasingly harmful threats emanating from the cyber domain. This string of information system compromises is exactly why NATO, in March 2014, was not practicing military maneuvers to repel an Eastern European invasion, or rehearsing a response to aggressive military action in the Strait of Hormuz, but instead holding a 17-nation cyber wargame named "Locked Shields." It is also why and where those who seek to answer cyber threats with conventional means come into play.
One possible takeaway from NATO's coordinated training to respond to cyber contingencies is that, at least in the case of the 17 participating nations, military action of some type is considered an appropriate response to some actions originating in the cyber domain. (15) The important international legal question that follows is how far a state (or security collective) can go within the existing normative framework concerning international wrongful acts, specifically as it regards using conventional militarily force in response to cyber-only threats.
This article seeks to answer that question, by exploring the current international legal regime on the use of force, particularly when framed as a response to an armed attack. While this appears at the outset to be a rather basic analysis, the combination of unclear definitions and indeterminacy in the areas of use of force and armed attack, when combined with the ambiguities and cascading effects of cyber operations, often leaves the practitioner with little more than a new list of questions. However, what is clear from the outset is that unless those questions are met with both a very specific and somewhat unlikely set of facts, it is improbable that cyber-only activities would meet the international legal threshold of an "armed attack," allowing for the response of large-scale conventional military force.
B. The Real Question
This article will seek to examine in what legal scenarios (if any) military force can be used in response to cyber-only threats. It will focus on the concept of using conventional military forces to respond, ostensibly by invoking self-defense, against a cyber-only capability that has been employed against them or their State, and which is being declared by said State to be an "armed attack." This analysis is the central focus within the larger legal issue, because this is precisely the scenario that multiple governments or commentators have posited in recent years. Commentators have noted that "the increase in attacks heightens the possibility that states might respond to a cyber-attack with conventional military means." (16)
This potential scenario is illustrated by Israeli Defense Force Chief of Staff Benny Gantz's claim that a full-scale war could be started by "a cyber attack on Israel's traffic light system." (17) In the United States context, there is the widely-circulated quote of the "unnamed American military official" whose claim to the Wall Street Journal was that "if you shut down our power grid, maybe we will put a missile down one of your smokestacks." (18) More subtle is the implication by A1 Jazeera (coming after the above quote) that given Stuxnet's "effects in the real world" and "traditional weaponry ... needed to achieve the same result," the cyber offensive against Iranian nuclear centrifuges might have permissibly led to military action on their part. (19) Another widely-discussed scenario is military response after malicious cyber activities against financial institutions or banking infrastructure, such as those described above against the Royal Bank of Scotland or the disabling of Russia's Central Bank during the events of 2014 in Crimea. (20)
Prior to the political discussion of whether any of these specific examples merit military response, this article analyzes whether military response is legally permissible in such scenarios. This article considers existing international legal authorities and precedent to examine whether it is likely that a State could successfully petition the UN Security Council for permission to use force in response to a cyber-only capability, whether a State could successfully advocate at the International Court of Justice for a finding that their use of force was in self-defense against what the State would likely term a "cyber armed attack," or finally, whether a State might be able to legally use military means in implementing countermeasures against an enemy cyber capability.
II. INTERNATIONAL LEGAL REGIME ON THE USE OF FORCE
The question often asked about these international cyber incidents is whether or not they amount to an "act of war," and what the victim state can, should or must do about that determination. With respect to so-called cyber attacks on computer networks, or even actual damage to physical infrastructure, General Martin Dempsey, the Chairman of the Joint Chiefs of Staff, said in a 2013 speech at the Brookings Institution that "the decision to declare something a hostile act--an act of war--is certainly one that resides in the responsibility of our elected leaders." (21)
General Dempsey properly recognizes that the concept of "acts of war" is no longer the international legally-significant trigger it once was, and instead lives on as a political determination. Other than usefulness as a headline, in many ways the term is all but lost to history. Certainly Congress is given the authority "to declare war" by the Constitution, and there are numerous statutory authorizations triggered and other legal implications when this happens, but in the international use of force context the term no longer means what it once did. (22)
As the Crimes of War Education Project relates, "The term 'act of aggression' has [for] all intents and purposes subsumed the legal term 'act of war' and made it irrelevant, although 'act of war' is still used rhetorically by States that feel threatened." (23) That said, the term continues to be legally defined in the United States as follows:
(4) the term "act of war" means any act occurring in the course of--
(A) declared war;
(B) armed conflict, whether or not war has been declared, between two or more nations; or
(C) armed conflict between military forces of any origin. (24)
This definition is not particularly illustrative, as it in essence states that anything occurring during the course of an armed conflict is an "act of war," and also appears to provide the corollary that if no ongoing armed conflict is present, there can be no such thing as an "act of war."
Thus, in considering the permissible use of armed force one must move on from the classic considerations of "act of war," and examine "use(s) of force" and "armed attack," for it is this set of terms, as seen below, that the UN Charter and follow-on customary international law that has followed its signature established as the 'keys to the kingdom' in getting to the modern Jus Ad Bellum, or law regarding the recourse to war.
A. UN Charter
The UN Charter explicitly recognizes the sovereignty of nations, and in that vein it prohibits, at Article 2(4), the "threat or use of force against the territorial integrity or political independence of any state." (25) As a practical matter, the Charter permits such uses of force in only two scenarios: first, when the use of force is first sanctioned by the United Nations Security Council; and second, when it is used permissibly in self-defense. (26)
The former of these authorized uses of force exists because Article 39 of the Charter states that "[t]he Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security." (27) When followed, the reference to Article 42 yields the following regarding the Security Council: "it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations." (28)
In regards to self-defense, Article 51 of the Charter states that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." (29)
1. Article 2(4)
Article 2(4)'s prohibition on the use of force has spawned numerous writings on the legalities of going to war in recent decades, but Titiriga Remus aptly describes the current trend line by pointing out that while Article 2(4) is often considered the cornerstone of jus ad bellum in the modern era, it (and its modern peers) has actually caused the jus ad bellum to morph into a jus contra bellum (law prohibiting the recourse to war) over the last half-century. (30) In a purely historical context, this evolution makes absolute sense. Article 2(4) was considered, at the time, "the underlying and cardinal principle of the whole Organization," given that the United Nations came about as a direct result of the horrors that World War II wrought upon five continents. (31)
The United Nations Charter as much as spells this out when it says that its purpose is to "save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind." (32) Much of this sentiment was undoubtedly influenced by the previously-unseen levels of destruction that the dropping of the atomic bombs at Hiroshima and Nagasaki ushered in. Commentators at the time of the Charter's adoption, and Article 2(4)'s entry into force, went on record as saying that armed conflict had become "increasingly destructive to the point where it threatens the continued existence of civilization," and that this bleak reality had "undoubtedly strengthened the common purpose." (33)
Despite the very pessimistic outlook towards potential future conflict and the related all-encompassing importance of preventing it, this United Nations prohibition on the use of force (save when authorized by the Security Council or in self-defense) could be seen as a retreat position from the Kellogg-Briand Pact; this document was the Post-World War I attempt at international agreement on conflict undertaken after the first of the two incidences of war mentioned in the UN Charter Preamble.
This pact, signed by many of the major powers involved in World War I, was intended as a "frank renunciation of war," and which on its face outlawed recourse to war as a means of resolving disputes or conflicts "of whatever nature or of whatever origin they may be." (34) History proved this total ban on war was not realistic, however, as a number of conflicts ensued shortly after its signature, culminating with World War IPs start only a decade after the pact's entry into force.
At the same time, it could be said that this strict ban did not go far enough, or at the very least was not specific enough. This is because war, as discussed above, was already seen less as a descriptor of actions and more as a "legal concept." (35) Battles could be waged and if the nation-states involved did not wish to be considered "at war," they very likely were not. Similarly, nations could easily mutually declare themselves "at war" without a single use of force having yet occurred. (36)
The meetings to establish the United Nations and the ultimate signature of the Charter appeared to acknowledge the practical failures of Kellogg-Briand, by virtue of the fact that UN founders took the progressive and pragmatic step of prohibiting the threat or use of force, as opposed to addressing the concept of war, while also providing for certain limited exceptions. However, they did not precisely define what would quality as a now-outlawed "use of force." Thus, the type and degree of force required to constitute a violation of Article 2(4) is not clearly established within the charter itself. While there are certainly majority views in the international legal community, to be discussed below, there is still no universal consensus.
Common sense itself dictates that military (or "armed") force always violates the proscription, if not otherwise explicitly authorized. At the time of the Charter's adoption, Goodrich elaborated on Article 2(4)'s prohibition, stating that "it can be presumed that the word 'force' as used in this paragraph means only 'armed force,"' (37) and Randelzhofer and Dorr propose in Simma's treatise on the UN Charter that the definition of force as it is used in Article 2(4) is, "according to the correct and prevailing view, limited to armed force." (38) While it is the "prevailing view" that unjustified armed force alone qualifies as an unlawful use of force under the Charter, member states frequently argue that lesser and different forms of force may also qualify for the prohibition.
These arguments are most often made by those who rely on the language in Article 2(4) prohibiting the use of force against the "political independence" of a state. (39) These arguments center on the assertion that any attempts to coerce a change in a state's political will, whether through armed force or the use of any other means that can achieve the same ends, violate the spirit of Article 2(4). These claims are buoyed by multiple United Nations General Assembly (GA) resolutions, as outlined below.
General Assembly resolution 2625, the Friendly Relations Declaration, states that not only armed intervention, but "all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural elements, are in violation of international law." (40) This resolution goes on to state: "No state may use or encourage the use of economic, political or any other type of measures to coerce another state in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind." (41)
General Assembly resolution 42/22, Declaration on the Non-Use of Force, was passed 17 years later. It reiterates the same idea, and quotes from the older resolution when it mandates that states abstain from all "other forms of interference or attempted threats against the personality of the State," and reinforces that states may not "use or encourage the use of economic, political or any other type of measures to coerce another State." (42)
Given that it is a political body, the General Assembly's resolutions do not amount to binding international law. To the degree that General Assembly resolutions are adopted by consensus, or that states universally ascribe to be bound by them, it is possible for them to attain the status of customary international law. (43) However, the prevailing viewpoint and ongoing state practice do not appear to support this expansive view of Article 2(4)'s prohibitions. (44) Further complicating the potential use of these resolutions' language as expanded approaches to the use of force is the fact that GA Res. 2625 explicitly states that "nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful." (45)
In addition to argument about the scope of Article 2(4)'s prohibition, specific means of international relations come into play. Each of these means might be 'questionable' relative to another state's sovereignty and political independence. However, they clearly do not rise to the level of being a prohibited use of force in customary international law for one reason or another.
One of these is what can be termed "economic force." States falling into the notional category of 'desiring an expansive view of Article 2(4)' seem to often promote economic force as a non-armed-force use of force. However, the prevailing view is to reject economic force as a use of force, based largely upon the historical fact that this consideration was explicitly taken up, and intentionally excluded, by the drafters; in 1945, at the San Francisco Conference on International Organization, the Brazilian delegates sought to amend Article 2(4) in order to include the threat or use of "economic measures" along with the included prohibited threat or use of force. (46) This proposal, however, suffered an unambiguous defeat, and the inclusion of economic activity as a potential unlawful use of force was left out of the Charter.
The exclusion of economic activities from the conceptual use of force definition may partially explain the delegates' voting results. The Charter's focus on state sovereignty as a fundamental precept of international law demonstrates its intent to protect, if not encourage, economic sovereignty. (47) Therefore, with economically competitive behaviors following close behind economic freedom, an attempt to internationally regulate "forceful" economic activities between states might encroach upon "competing" economies, thereby impacting ongoing trade relations. (48)
Another established non-use of force is espionage. Espionage will be defined here as "consciously deceitful collection of information, ordered by a government" which is "accomplished by humans unauthorized by the target to do the collecting." (49) It is widely condemned at the state level, and espionage's definition is focused on human "spying," implying that the collector is operating in an internationally unfriendly way outside of his or her own territory. That is, these espionage operations are likely occurring either in the territory of the target, or that of a neutral party. These acts might include only the unlawful collection of information; however, they sometimes also include the provision of information to parties hostile to the State, or even the intentional dissemination of misinformation to parties friendly to the State. These actions could have potentially devastating consequences for a state, from exploiting the information gained in order to take out the enemy State's air defenses, to providing intelligence to subversive internal forces that could then successfully carry out a coup. It is this set of potentially catastrophic outcomes that leads many nations to punish acts of espionage (common domestic offenses include "spying," "treason," and "aiding the enemy") with mandatory death. (50)
However, despite this significant national treatment, there is no public international law prohibition on espionage, and there is certainly no principle of jus cogens violated by espionage. (51) Acts of espionage may result in catastrophic outcomes for the target State. However, the underlying act of espionage is still not criminalized internationally, let alone considered an unlawful use of force based upon the resultant conditions. As Thomas Wingfield put it, when considering the potential negative repercussions of engaging in these spy games, the "lack of an international prohibition of espionage leaves decision makers with the usually acceptable liability of merely violating the target nation's domestic espionage law." (52)
Another potentially-questionable activity that does not trigger the Article 2(4) prohibition is, by definition, retorsion. Retorsion and reprisals are international unfriendly acts which are "aimed at deterring an adversary from future actions and convincing him to return to lawful behavior." (53) These acts are fundamentally different from other means of international relations in that retorsion is an act that is a coercive, 'hostile' act taken in international relations, but which somehow falls short of the Article 2(4) prohibition against the use of force. (54) Similarly, reprisal is an act that would be internationally unlawful per Article 2(4), but which is otherwise "justified as a response to the unlawful act of another state." (55) What differentiates reprisal from permissible self-defense, then, is a span of time. The difference between permissible reprisals (constituting neither an impermissible use of force nor act of self-defense) and other acts under the charter "lies in the stretching of the requirements of immediacy, since the reprisal can be taken at a time and place difference from the pivotal event." (56)
2. Article 51
Second only to disagreements over the application of the term "use of force" in law of war debates is the concept of the "armed attack." In fact, authors have gone so far as to label Articles 2(4) and 51 of the Charter "the twin scourges of public international law." (57) Article 51's infamy lies in the fact that this provision gives rise to States' right to self-defense in the UN-driven international legal regime. Article 51 says, "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." (58) Much like the debates that rage on over "uses of force" as regards Article 2(4), the fact that the Charter does not clearly define the term "armed attack" continues to create difficulty in application, as discussed below.
While there are many issues with its interpretation, context reveals the impetus behind the provision's existence. As discussed above, the Kellogg-Briand Pact of 1928 contained no provision for self-defense in the course of its total renunciation (and prohibition) of recourse to war. Some, such as U.S. Secretary of State (and namesake of the pact) Kellogg, felt that the right to self-defense was considered "inherent" and already enshrined in customary international law; therefore, he stated it need not be worked into the pact. (59) The United States went so far in support of this position as to transmit notes to many of her allies, stating that there should be no concern over the lack of reservation for defensive measures in the pact, as "[t]hat right is inherent in every sovereign state and is implicit in every treaty." (60)
A strictly textualist examination, however, would yield a different view. The new pact completely and explicitly banned resort to war as a means of international affairs, indicating it was to be treated as an applicable multi-lateral agreement intended to supersede what the law had heretofore been. In addition, if the right was as self-apparent and unyielding as Secretary Kellogg claimed, it seems that the United States was going through more trouble in the form of 'state practice' than should be necessary to bring the "inherent" fact to everyone's attention.
When considering the legal dispute in hindsight, the former United States argument is more supported by history and the existing law at the time than the latter textual view, as demonstrated by Article 51's later reiteration of the inherent right to self-defense. (61)
It was this codification of the right to self-defense in Article 51, however, that contained the new and undefined term of art constituting the trigger for that right: an "armed attack." One line of reasoning held by scholars is that the term went undefined because armed attack "was apparently considered self-explaining during the drafting of the Charter." (62) While there may be strong common sense support for this position, the fact remains that many actors will want a clear delineation of what satisfies the threshold test for when their right to self-defense can be permissibly invoked, and that clear threshold was not provided.
Prior to fully considering the hotly-debated issue of what might constitute an armed attack, it is helpful to quickly dispatch with the relevant rules that will be internationally binding as to how the follow-on permissible self-defense is used once the threshold is met.
It is generally accepted that three conditions must be satisfied in exercising self-defensive force as a response to an armed attack: the exercise of self-defense must be necessary, it must be proportionate to the armed attack, and it must take place with an appropriate degree of immediacy. (63) Of particular importance to note for international and operations law practitioners is that the conditions of necessity and proportionality, in relation to the jus ad bellum concept of self-defense, differ from the application of those same terms as used among the cardinal principles of LOAC in the jus in bello. (64) Confusion of these homonyms in the two sets of legal principles regulating the use of violence only compounds the difficulty of a bid to standardize the use of force internationally. Necessity, then, as it applies to self-defense, requires a number of sub-parts that must be satisfied in order for this first rule to be complied with. (65)
The first condition to be met by the state acting in self-defense is establishing that the alleged armed attack was definitively perpetrated by the entity to be engaged in self-defense, and no other. (66)
Next is that the use of force to be defended against amounts to an intentional armed attack, wherein the state exercising self-defense was the anticipated target of unlawful forced "aimed specifically" in its direction, and was not simply the victim of an indiscriminate attack or even an accident. (67)
Finally, the state acting in self-defense must determine that using force is the only practical means of self-help. In other words, it must be the case that "no realistic alternative means of redress is available," and that "force should not be considered necessary until peaceful measures have been found wanting, or when they clearly would be futile." (68)
The condition of proportionate response can be couched as simple reasonableness in the degree of counter-force used in response to the unlawful force being answered in self-defense. (69) That is, there must be a symmetry, or approximate equality in the scale and effects, of the international wrong committed and the force used in self-defense to counter it. (70) While legal approximations of proportionality are required in the course of battle planning, evaluation on the whole of whether force and counter-force was proportionate can only truly be done after the cessation of hostilities. Thus, as Dinstein points out, "proportionality is unsuited for an investigation of the legitimacy of a war of self-defense." (71)
Immediacy, as it deals with international self-defense, is merely the proposition that there "must not be an undue time-lag between the armed attack and the exercise of self-defense." (72) This condition is almost self-apparent, as to truly act in a way that will defend against an attack, that defense must be immediately focused on the attack as it happens. (73) However, this common-sense treatment of defense must be tempered by the preceding components of necessity, which mandated the accumulation of undisputed facts regarding the perpetrator, and some attempt at peaceful means of resolution prior to launching any self-defensive response. Therefore, to some degree necessity and immediacy form a type of sliding scale where more focus on one can only occur at the expense of the other.
Given these conditions precedent to the exercise of self-defense, what type of actions might be considered an armed attack that would give way to permissible self-defense? One of the least satisfying ways to answer this question is simply to assert that there is no need to separate the concepts of "use of force" and "armed attack," and claim that they are one and the same. A small number of scholars hold exactly this position, demanding essentially that there is no textual reason to read Article 51 any more narrowly than Article 2(4). (74)
Troubling to some is the potential for government and military lawyers around the world to adopt the position that 'uses of force' and 'armed attacks' are the same thing, despite the fact that the existence of two different terms implies the contrary conclusion. One of the scholars embodying this concern is Waxman, who points out that, officially, "[t]he United States government has not publicly articulated a general position on cyber-attacks and Articles 2(4) and 51." (75) Nevertheless, he goes on to imply a sense of institutional movement toward a position among the United States and other Western states that uses of forces and armed attacks bear very little distinction when he opines that, despite the lack of a public stance on the matter, at times the United States and her allies take a "position on this issue ... [which] differs from that of many states and authorities." (76)
A position refusing to acknowledge any distinction between triggering events relative to Article 2(4) and Article 51 is, in some ways, completely logical for Western states. That is, a state which holds the dominant view that the definition of a use of force is "confined solely to armed force," (77) and "does not extend to political or economic coercion" (78) is predictably more likely to consider that the difference between this required armed force and the ultimate "armed attack" that would permit force in response to be so inconsequential as to be literally non-existent.
That this position is, to some extent, supported by the dominant view on the meaning of "use of force" is ironic, given that it clearly differs from the prevailing view on the interplay of the two terms, namely that "there exists a gap between Articles 2(4) and 51." (79) Waxman offers that "it is widely understood that 'armed attack' is, although closely related, a narrower category than 'threat or use of force.'" (80) Dinstein further qualifies the existing distinction by pointing out that "Logically and pragmatically, the gap between Article 2(4) ('use of force') and Article 51 ('armed attack') ought to be quite narrow, inasmuch as 'there is very little effective protection against States violating this prohibition of the use of force, as long as they do not resort to an armed attack'." (81) In this practical consideration, Dinstein does not necessarily convey everything about Randelzhofer's authoritative conclusion regarding the prevailing view, however. The prevailing view does admit that "States are bound to endure acts of force that do not reach the intensity of on armed attack," however, this is actually a favorable outcome in the majority international view as the same "concern that an escalation, or even a full-scale war, could be the consequence of a State responding in self-defense to slight uses of armed force" that underlies the Charter is served by this difference in canonical terms. (82)
This clarification on the existence of different standards regarding the "use of force" and "armed attack," however, does not result in almost any benefit to the practitioner. Instead, there are now simply two undefined triggering events potentially relevant to a State's use of conventional force. To better understand what crosses the threshold of armed attack, one must examine the limited pool of related jurisprudence the International Court of Justice (ICJ) has provided on the matter.
(a) Nicaragua Case
The Nicaragua case is the first, and most important, of the ICJ cases to address the concepts of "use of force" and "armed attack." The central facts of the case start in 1979, when the Somoza government in Nicaragua was ousted by the Sandanistas, but reach their most crucial point in 1981, when the United States began to take active involvement in the region based largely upon Nicaragua's support for guerrillas in El Salvador. (83) While this action involved sanctions and the suspension of aid, it also involved the support of the Contras, which was what ultimately resulted in Nicaragua's filing of a claim against the United States for engaging in "military and paramilitary activities in and against Nicaragua." (84) At its simplest, Nicaragua's claim is that by supporting the paramilitary activities of the Contras, the United States has violated international law insofar as the prohibition against the use of force and the principle for non-intervention are concerned. (85)
Jurisdictional disputes and procedural hurdles left this dispute settled, and the judgments rendered, in a way less effective and illustrative relative to the UN Charter than it otherwise could have been. Most notably, the United States submitted a declaration and protested the Court's jurisdiction, before then withdrawing from participation in the case. (86) This withdrawal from participation and the United States invocation of their multilateral treaty reservation resulted in the court considering less of both the facts and the law than would have been desirable in order to clearly establish international guidelines.
As a secondary diminution of the case, El Salvador's request to intervene in the proceedings, ostensibly to submit their own claims of Nicaragua's wrongful use of force and/or armed attacks so as to potentially bolster justification for the United States' proffered collective self-defense argument, was denied by the Court. (87)
Finally, the Court largely passed on the issue of defining "armed attack." Specifically, the Court simply stated that there exists "general agreement on the nature of the acts which can be treated as constituting armed attacks." (88) The court did make a helpful qualification of uses of force and acts of aggression, however; the Court provides that it is only "the most grave forms of the use of force" which are "those constituting an armed attack." (89) This proviso clearly draws the line between some uses of force and others is instructive, but still generally falls well short of being determinative or definitional. Nonetheless, even with the failure to address all the facts that might have been helpful in the case, and less than full deliberation of UN Charter application, the case highlights a number of invaluable considerations to the concepts of self-defense and armed attack.
First, because the Court settled this case using customary international law after honoring the United States reservation, even without providing any definitions, the Court ended up addressing the fact that customary international law as to self-defense and Article 51 of the charter are essentially one and the same. The Court initially pronounced that when it comes to considering "use of force" and "armed attack" both under the customary international law and the Charter, "the substantive rules in which they are framed are not identical in content." (90) However, when it comes time to state what the customary law is, there appears no practical difference to Article 51 worth noting, as the Court expressed that "[i]n the case of individual self-defense, the exercise of this right is subject to the State concerned having been the victim of an armed attack." (91) The Court made the same determination regarding collective self-defense, pointing out that as a principle of customary law, "for one State to use force against another, on the ground that that State has committed a wrongful act against a third State, is regarded as lawful, by way of exception, only when the wrongful act provoking the response was an armed attack." (92)
Second, the Court discussed the high standards of attribution for those unfriendly individuals participating in wrongful acts which a State wishes to conclude were armed attacks ascribed to a certain other State. This high threshold for attribution is clearly seen when the Court examined United States assistance to the Contras, and whether this assistance imputed the Contras' actions to the United States. On this matter the Court states:
U.S. participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the [C]ontras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. (93)
The ICJ concluded this analysis by saying that "[t]he Court does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State." (94) ft might be surprising that financing, organizing, training, and selecting targets for those who commit acts that might constitute either a "use of force" or "armed attack" does not suffice to establish responsibility. However, the Court squarely addressed this issue by instituting the standard of "effective control," when stating that in order to hold a State responsible for an armed attack, it would "have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed." (95)
Finally, while the Court clearly stated that in order to exercise self-defense a State must be the victim of armed attack, the Court also appeared convinced that certain counter-measures falling short of self-defensive force are also permissible when the countered international wrong has itself been something short of an armed attack. This possibility was, ironically, raised in the course of stating that the United States was not justified in using counter-measures in Nicaragua. In the course of that discussion, the Court declared the salient point that, "[t]he acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate countermeasures on the part of the State which had been the victim of these acts." (96)
(b) Congo Case
The Armed Activities on the Territory of the Congo case does not significantly add to further understanding of the UN Charter concepts of "use of force" and "armed attack." Rather, it solidifies the points made in the Nicaragua case through the analysis of customary international law. The facts of the case start in August of 1998, when Ugandan forces invaded part of the Democratic Republic of the Congo (DRC), after the new DRC President, Laurent-Desire Kabila, affirmatively sought to restrict the influence of Uganda and Rwanda in the DRC. (97) In response to this political maneuvering, Uganda and Rwanda deployed their own armed forces to a number of regions inside the DRC. More germane to the case is that Uganda "supported Congolese armed groups opposed to President Kabila's Government." (98) Specifically, the DRC contended that Uganda "both created and controlled the Congo Liberation Movement (MLC)," which was a rebel group operating primarily in the north part of the country, and led by Jean-Pierre Bemba. (99)
The Court ultimately determined that Uganda violated numerous international law obligations, but that the DRC failed to show the MLC's conduct should be attributed to Uganda, such that the DRC could then permissibly act in self-defense against the State. The Court determined Uganda had provided both logistics and training for the military branch of the MLC (100) and provided ongoing tactical military support to the MLC during actual operations. (101) The Court also acknowledged that in the Harare Disengagement Plan, the MLC and the Uganda People's Defense Force (UPDF) were treated as the same entity. (102) Nonetheless, the Court could not determine whether "MLC's conduct was on the instructions of, or under the direction or control of Uganda," and thus the Court found "that there is no probative evidence by reference to which it has been persuaded that this was the case." (103) Therefore, the Court determined that as Uganda does not have "sufficiency of control of [the] paramilitaries," the DRC is not entitled to use force in self-defense against Uganda to cease the activity of said paramilitaries. (104)
The Court did display that, at least with respect to these issues, they are consistent. In response to Uganda's claim that their military activities in the eastern portion of the DRC were initially self-defensive in nature, the Court again declined to recognize the claimed right of self-defense by announcing an inability to establish proper attribution. In Uganda's case for self-defense, the Court found that the Allied Democratic Forces (ADF), who had rear garrison bases in the DRC and were supplied by the DRC and Sudanese, were responsible for six attacks that resulted in the ultimate death or capture of 200 Ugandans. However, the Court then concluded that "there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC." (105) Because these "attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC," (106) the Court concluded that "even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC." (107) This ultimately led the Court to find that "the legal and factual circumstances for the exercise of a right of self-defense by Uganda against the DRC were not present." (108)
(c) Oil Platforms Case
The Oil Platforms case provides another ICJ judgment that directly addresses international self-defense, without litigating (or otherwise defining) the provisions of the UN Charter. Against the backdrop of shipping operations affected during the Iran-Iraq war, the United States attacked two Iranian off-shore oil platforms on 19 October 1987. This came after a U.S.-flagged vessel was struck by a missile which the United States believed to be launched by Iran on 16 October 1987. (109) Then, in April 1988, the USS Samuel B. Roberts was damaged by a naval mine while returning from an escort mission, and four days later the United States attacked two oil complexes with maritime forces. (110)
The case was brought by Iran in 1992, not as a violation of obligations under general international law, but as a breach of the 1955 Treaty of Amity, Economic Relations and Consular Rights. (111,112) In a case where one party fired a missile at the other party's vessel and laid naval mines, and the other party attacked four oil platforms using military force, the ICJ found neither party in breach of the treaty. (113) In the course of delivering what may be seen as a non-answer to the involved complaints, however, the Court provided useful commentary on self-defense and armed attacks. Interestingly, the Court determined that in order to decide whether the attacks and counter-attacks affected "freedom of commerce" or "security interests" it could accept that "Article XX, paragraph 1(d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force." The "application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation" the Court was to perform. (114) In considering the international law relevant to the series of attacks between Iran and the United States, the Court again imposed the incredibly high threshold for armed attack that was seen both in the Nicaragua and Congo cases.
Concerning the missile attacks against ships in the Persian Gulf region, and specifically the Silkworm missile attack against the Sea Isle City on 16 October 1987, the Court ultimately stated that "the burden of proof of the existence of an armed attack by Iran on the United States, in the form of the missile attack on the Sea Isle City, has not been discharged." (115) This conclusion came following satellite and other electronic imagery of four missile sites within the Faro area admittedly under Iranian control, testimony of two Kuwaiti officers about the launch of the missiles (including the observed path of the missile that struck the Sea Isle City), U.S. AWACS data eliminating other potential sources of a fired missile, and even Iranian President Ali Khameini's threat that if the United States did not leave the region, he would attack. (116) This evidence did not show attribution simply because Iran declared it was not responsible, as the Court repeatedly pointed out, the United States could not produce any physical evidence of the missile. (117)
Concerning the apparent systematic minelaying that occurred in the Persian Gulf, and subsequent damage to the USS Samuel B. Roberts, the Court held that "evidence of other minelaying operations by Iran is not conclusive as to responsibility of Iran for this particular mine." (118) The Court noted that Iran laid mines in the Khor Abdullah channel, but Iran claimed those mines were placed for defensive purposes, and therefore the United States failure to produce evidence of intent also failed to meet attribution standards. (119) Finally, the Court addressed the apparent smoking-gun fact that other mines moored near the USS Samuel B. Robert's, damage were, in fact, Iranian mines, to include serial numbers proving they were Iranian mines. Concerning the specific mine that damaged the USS Samuel B. Roberts (for which no intact serial number could be recovered) the Court blithely stated it "is highly suggestive, but not conclusive." (120)
While the Court's standard of attribution seems to climb from the "very high" to "impossibly high" in this case, the threshold for what constitutes an armed attack follows a similar trajectory. Having failed to attribute the attacks to Iran, the Court had no actual need to consider whether or not they rose to the level of "armed attack" such that the United States was justified in using self-defensive force. However, the Court nonetheless highlighted the ever-widening gap between the "use of force" under Article 2(4) of the UN Charter and "armed attack" under Article 51 when they reminded the parties that it is only "the most grave forms of the use of force" that were to be considered as "constituting an armed attack." (121)
With this qualification firmly in mind, the Court stated that it would proceed "[o]n the hypothesis that all of the incidents complained of are to be attributed to Iran," which included the Silkworm missile strike on the Sea Isle City, the attack on the Texaco Caribbean, the firing on U.S. helicopters by Iranian gunboats and from Iranian oil platforms, and the systematic minelaying by Iran Air. (122) Considering all of these events, the Court concluded that
"[e]ven taken cumulatively, and reserving, as already noted, the question of Iranian responsibility, these incidents do not seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a 'most grave' form of the use of force." (123)
Of keen interest to those who considered the outcome of this case less than satisfactory is Judge Simma's separate opinion, which takes a particularly dim view of the majority opinion. Judge Simma clearly implies that he found preposterous the Court's holding that the U.S. attacks on the Iranian oil platforms did not infringe upon Iran's freedom of commerce. He found equally troubling the treatment of the United States counter-claim that the strikes were necessary to protect essential security interests and a valid exercise of self-defense. Judge Simma wrote, "[i]n my view, this counter-claim ought to have been upheld." (124)
Simma's primary complaint was the "half-heartedness" with which the Court addressed the concepts of use of force and self-defense. (125) He appeared disappointed that the Court did not directly address the UN Charter, further, he found it regrettable that the Court could not muster
the courage of restating, and thus re-confirming, more fully fundamental principles of the law of the United Nations as well as customary international law (principles that in my view are of the nature of jus cogens) on the use of force, or rather the prohibition on armed force, in a context and at a time when such a reconfirmation is called for with the greatest urgency. (126)
Part of Simma's disagreement with the Court's treatment of the use of force and self-defense is that the overly-narrow, high-threshold approach they take pushes the very concepts involved toward obsolescence. Thus, his true point of contention centered on the treatment of the United States counter-claim. Regarding the missile, mine, and gunboat attacks against the United States, he wrote that "the Judgment might create the impression that, if offensive military actions remain below the--considerably high--threshold of Article 51 of the Charter, the victim of such actions does not have the right to resort to--strictly proportionate--defensive measures equally of a military nature." (127) Simma ultimately showcased his strong position on this issue by proposing his own approach:
In other words, I would suggest a distinction between (full-scale) self-defense within the meaning of Article 51 against an "armed attack" within the meaning of the same Charter provision on the one hand and, on the other, the case of hostile action, for instance against individual ships, below the level of Article 51, justifying proportionate defensive measures on the part of the victim, equally short of the quality and quantity of action in self-defense expressly reserved in the United Nations Charter. (128)
B. Acts of Aggression
If the ICJ has continued to widen the gulf between "use of force" and "armed attack," what fills the resultant void? While the terms "use of force" and "armed attack" remain undefined by the UN Charter, in the cases above the Court continually relied upon 1974 General Assembly resolution 3314 to help it decide the issue of "armed attack." (129) This GA resolution, to the potential confusion of practitioners, undertook not to define either of these vital terms found in the UN Charter, but instead the term "acts of aggression."
In the preamble of GA Resolution 3314, the General Assembly reminded member states that they must refrain "from all acts of aggression and other uses of force." (130) This text is significant in that a plain reading, while not defining "use of force" as such, clearly states that acts of aggression are themselves part of the general category of "uses of force" at a minimum. The text also strongly implied in the resolution itself that acts of aggression are a special, and more serious, aggravated type of use of force. If an international unfriendly act is an act of aggression, the act would at least be a use of force. This creates something akin to a three-tiered use of force hierarchy. Some "uses of force" are nothing more than that; some may rise to the level of being considered an "act of aggression" and nothing further; and the gravest of these qualifies as not only a "use of force" and "act of aggression," but an "armed attack," as well.
Therefore, separate from all of the other 'pedestrian' uses of force, GA Resolution 3314 provides a list of "serious and dangerous" (131) uses of force. From this list, theoretically, the "most grave forms" can be selected as occurrences that rise to the level of armed attacks. Article III of the Resolution then provides a non-exhaustive list of explicit examples of acts of aggression:
(a) The invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof,
(b) Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state;
(c) The blockade of the ports or coasts of a state by the armed forces of another state;
(d) An attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state;
(e) The use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a state in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state;
(g) The sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein. (132)
This non-exhaustive list has an obvious common theme: the use of armed force directly against the territory or personnel of another state. From this list, those that are the "most grave," (133) i.e., those exceeding "mere frontier incidents]," (134) might be considered an "armed attack" in the international legal regime.
Another crucially important internationally unfriendly act existing below the level of "armed attack" is that of "countermeasures." The idea of countermeasures is essentially a modern sub-set of what was traditionally viewed as reprisal. (135) The term "reprisals" is generally only used in reference to actions taken during the course of armed conflict, whereas "countermeasures" may be used to refer to retributive internationally unfriendly and belligerent actions used at any point, not just in the course of ongoing armed conflict. (136)
International legal considerations regarding employment of countermeasures is largely derived from the United Nations International Law Commission, and its work on the law of state responsibility. The Commission spent over 60 years amassing what was intended to be an authoritative summation of customary international law as it guides public international relations issues. (137) In the course of assembling this material, the Commission compiled draft articles on the responsibility of states for internationally wrongful acts, which, in 2001, the United Nations General Assembly adopted, ultimately commending the articles to member States in resolution 56/83. (138) The UN General Assembly has recommended the articles to its members in three resolutions since that time, and according to a Secretary-General report for the 68th Session of the UN, the articles and their commentaries had been authoritatively cited 154 times by international courts and tribunals. (139) All of this appears to support the proposition that, as the International Law Commission intended, the articles would summarize the customary international law in the first place, as they have been used extensively as such a reference.
The articles explore the basics of countermeasures and the use thereof, to include concepts such as the injured state, the responsible state, and what constitutes an actionable breach. Most importantly, the articles outline the particular rules and limitations on how countermeasures may be used. Part One of the articles initiates the rules on countermeasures with the concept that "the breach of any international obligation" of a State constitutes an "internationally wrongful act" that may be actionable. (140) Part Two of the articles deals with the "obligations of the responsible State," and Part Three is concerned with the "implementation of State responsibility," to include what actions the injured State may take against the responsible State. (141)
Article 42 begins these relevant provisions by stating that an injured State may invoke responsibility against a State if its wrongful activity was taken against the injured State, or a group of States including the injured State. (142) This is an important concept, because it distinguishes the right to collective self-defense in the case of an armed attack from the right to respond with countermeasures only when the State is a direct victim. This is juxtaposed with Articles 48 and 54, however. Taken together, these articles clarify that while countermeasures are not a 'transferable' response in international relations, if a State is a member of a 'collective,' to include in all cases the international community at large, which is harmed by the breach, any member State of the collective may implement appropriate countermeasures. (143)
Article 49, "Objects and Limits of Countermeasures," establishes that the injured State may only take countermeasures in order to induce the responsible State "to comply with its obligations," and that countermeasures "shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question." (144) This might be analogous to the concept of necessity in self-defense. Countermeasures can only be taken against the responsible State for so long as they might serve the goal of helping to "induce that State to comply with its obligations of cessation and reparation." (145) Anything beyond this, the articles imply, is merely vengeance.
Article 50 specifies that the right to implement countermeasures shall not affect certain international obligations, to include:
(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law. (146)
Much of this is seemingly self-apparent, as the rules for employment of countermeasures, by definition, deal with the permissible hostile interaction occurring below the thresholds of "use of force" and "armed attack" as between states. It would hopefully go without saying that preexisting obligations as regards human rights and other normative frameworks remain intact even when responding to being wronged.
Apart from necessity, Article 51 spells out the analogue to proportionality. The article states that countermeasures must be "commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question." (147) Like Article 50's warning about human rights violations, it may seem that a rule specifying that a scenario where countermeasures are legal is not a blank check for retaliation is unnecessary. However, in the context of the Post-World War II United Nations, where it was believed that the threat of war "endangers the survival of mankind," such conservative and cautionary measures to prevent the escalation of hostile interaction are hardly a surprise. (148)
D. Principle of Non-Intervention
A final principle dealing with activities generally short of armed attack is non-intervention. This principle is often applied when considering claims of an illegal use of force which fall short of the armed attack threshold, such as those of economic and political coercion. This principle finds its legal basis in the combination of Article 2(1)'s declaration of the "sovereign equality" of all Members, (149) and Article 2(7)'s assurance that the United Nations is not authorized to "intervene in matters which are essentially within the domestic jurisdiction" of a member State. (150) Layered upon these pronouncements is the UN General Assembly's Friendly Relations Declaration, which specifically forbids "activities directed towards the violent overthrow of the regime of another state" as well as attempting to "interfere in civil strife in another State." (151) That General Assembly Declaration also states that not only are the previous activities proscribed, but that "no State, or group of States, has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. (152)
The practical effect of this principle is that it provides a means of categorizing some of the internationally unfriendly acts that do not trigger the prohibitions in some cases, and rights in others, associated with uses of force and armed attacks. This provides another label (finding) that is applied by the ICJ, as even if examined military activity does not rise to the level of a "use of force" or "armed attack" the court may determine that a "military intervention" has occurred. (153) This determination that military forces may be used, while falling short of the threshold of either use of force and armed attack, is directly relevant to the discussion of the use of permissible countermeasures.
III. ALTERNATIVE SCENARIOS FOR PERMISSIBLE CONVENTIONAL MILITARY RESPONSE
Having considered the international legal regime and associated rules and definitions that would control how any attempted use of conventional military force in response to a cyber-only threat is analyzed by the UN Security Council or ICJ, it is necessary to examine the actual mechanisms through which a State might seek to bring military force to bear upon the party responsible for the hypothetical malicious cyber capabilities employed.
A. UN Security Council Authorization
The first potential way a State might seek to use force (or, 'see force used' in the case of a collective response) is through application to the United Nations Security Council. This is clearly the method favored by the existing international legal regime governing the use of force, as evidenced by the fact that the UN Charter explicitly gives the Security Council both the responsibility and authority for "maintenance of international peace and security." (154)
Thus, Article 39 of the UN Charter provides the Security Council with authority to determine when there has been any "threat to the peace, breach of the peace, or act of aggression." (155) The Security Council may then decide what measures are to be taken under Article 41 or 42 of the Charter, and per Article 25 all member States must "accept and carry out the decisions of the Security Council." (156) A substantive decision about a breach of the peace or measures to be taken must pass the Security Council with nine affirmative votes, to include an affirmative vote from each permanent member of the Council. (157)
Even this cursory examination of the Council and its authority begins to illuminate why this method, i.e., requesting that the Security Council consider a dispute and decide that force will be authorized in response under its Article 42 powers, is easily the least likely method by which a State will employ force in response to a malicious cyber activity. This conclusion is evident for two primary reasons, both of a practical (vice legalistic) nature.
1. Security Council Process
The first reason that this method fails is the very nature of the United Nations, its Security Council, and any bureaucracy in general. When a state is involved in a dispute serious enough to consider military force as a self-defensive response to cyber-only activity, it seems safe to posit that temporal factors will be among the most important variables in the outcome of the dispute. Adding layers of procedure by an international body on top of whatever domestic administrative process exists cannot possibly speed up the response. (158)
To the credit of the UN and the Security Council, and due to the grave responsibility of preserving international peace and security, the Council maintains a state of readiness such that they can assemble very quickly after the President of the Council decides to convene a meeting. As a practical matter this is owed to fact that all of the Security Council members have permanent diplomatic missions staffed at the United Nations Headquarters. (159) Procedurally, this is the case because Article 28 of the Charter mandates that "[t]he Security Council shall be so organized as to be able to function continuously." (160)
It is, however, the responsibility of the President of the Council to call a meeting once a member State has so requested. (161) Once the meeting has been convened, the Council must first decide whether or not the Council will consider the issue. (162) This is done, procedurally, through a formal adoption or rejection of the submitted dispute as an agenda item. (163) If the agenda item is accepted, the Council is then "seized of the matter." (164) At this point the Council will determine whether the scenario referred to it is a true "situation" or "dispute." (165) Only after this Article 36(1) jurisdictional decision can the Council then move on to deliberations and decision-making.
Once the Security Council is "seized of a matter," if it is contemplated by the Council, or requested by the initiating State, that some Chapter VII enforcement measures are to be taken, the Council must first determine per Article 39 that a "threat to the peace, breach of the peace, or act of aggression" exists. (166) What the initiating State must understand is that the Security Council's function is not that of a police force, judge, and jury, seeking to sanction the wrong-doer, but instead is that of a body charged with maintaining the peace. (167)
This fundamental purpose provides the reason that prior to authorizing the use of force under Article 42, the Security Council must have already considered that "measures provided for in Article 41 would be inadequate or have proved to be inadequate." (168) These Article 41 measures include any of those not rising to the level of the use of force, such as economic sanctions, referral to international tribunal, arbitration, and other non-military enforcement measures. (169) Again, this preference for non-forceful responses, if at all possible, is entirely consistent with the UN Charter framework, given the overarching goal of "world unity and world organization," in order prevent conflict whenever possible so that conflict does not spiral into war. (170)
All of this procedure illustrates the necessary bureaucratic nature of the Security Council, and highlights that any decision it ultimately renders regarding the use of force is not likely to come quickly. In fact, a case study of State-initiated agenda items before the Security Council makes it fair to say that any such decision would not be a matter of hours, or even days, but very likely weeks, and possibly months. (171)
2. Security Council Geopolitics
The second reason that the Security Council option is not likely to lead to an approved use of force in response to a malicious cyber event is the nature of the geopolitics involved. Those who postulate that a cyber event will rise to the level of an armed attack often construct politically-correct hypotheticals where "Vetruvia" uses malicious code against a dam and hydroelectric system in "Arkastan," creating a safety scenario such that the international community accepts Arkastan's use of force in response. However, the real world will not involve fictitious States who owe no political allegiance to members of the Security Council, and to whom no allegiance is owed. Rather, this situation will involve UN member States which the Security Council would have to agree should be dealt with forcibly, and do so after so much of the cyber mischief (read: state practice) discussed above has gone on uninterrupted in the preceding decades.
With the veto powers of the permanent members of the Council in mind, it is fair to ask whether any commentators truly believe that China is likely to allow a use of force against a North Korean cyber-only incident, or conversely that the United States would allow a decision to use force against Israel for cyber mischief? Would Russia approve a resolution allowing the use of force against Iran in response to a cyber action undertaken by the Republican Guard? Such scenarios are problematic, at best, and at the very least the involvement of real States would add to the timeline for determination by the Council. This increased period of waiting for resolution adds to a timetable which the victim State would likely already find untenable.
Add to these considerations of practical reality the fact that the Security Council will also have to apply, generally, the same international law relevant to the ex post facto examination of a State determination when taking the defensive self-help route, below. This arguably makes it wiser for the State to take the course of action they believe legal and appropriate, and then undergo ICJ litigation of the matter later.
B. Use of Force in Self-Defense in Response to an Armed Attack
As discussed, in order for a State to use force in response to a malicious cyber incident, the cyber intrusion must raise to the level of an "armed attack." (172) Whereas the Security Council route requires petitioning the Council for their decision regarding the potential attack and the authorization of force, the self-help/ self-defense route will consist of using force as a self-defensive measure and then reporting to the Security Council the measures taken. Any potential legal repercussions, then, would come via a later analysis by an international tribunal such as the ICJ. Thus, one of the incentives for a State to take this approach to using force in response to a cyber intrusion is that it amounts to asking for forgiveness later, rather than making a mandatory request for permission now.
Despite the potential attraction of explaining away international actions rather than justifying them in advance, there are at least two fundamental hurdles that remain when choosing the retrospective, ICJ approach.
First is the problem that incredibly high ICJ standards for attribution of an armed attack will pose in the cyber domain. It is well-established that in the cyber domain, as a practical matter, "both act and actor attribution are difficult to prove with scientific certainty," largely because "[c]omputer networks are not designed to facilitate attribution." (173) Not only are networks not designed to facilitate attribution, they are also designed in large part to combat it. (174) With applications like TOR becoming ever more popular and accessible to the public, it is hard to believe that actor attribution could be proven to a scientific certainty if the bad actor had even the most marginal of skills at anonymizing. (175) However, the ICJ demands precisely this level of scientific certainty for attribution when it refers to moored mines with traceable serial numbers as "highly suggestive, but not conclusive." (176)
This problem of conclusive attribution is compounded in the cyber domain, as not only do bad actors have a vastly easier time remaining anonymous when compared with the physical world, but they also have the ability to fairly easily engage in "spoofing," which amounts to forging a fake IP address. If successful, this will lead investigators to an incorrect source of attack. (177) This makes what would be the cyber version of "false flag attacks" relatively easy to carry out, and a variable that would logically cause the international community to argue for an even higher level of certainty for attribution in the cyber domain than in the physical world.
Yet another challenging aspect to attribution is that even if the IP address from which the attack has emanated can be discovered, who was behind that IP address directing the attack can be nearly impossible to conclude. To accomplish this very likely requires an ongoing intelligence effort before the attack is initiated, and/or presence on, and access to, the network from which it emanated. (178) This, "the most technologically challenging level of attribution," (179) will be scrutinized heavily under any ICJ analysis. In fact, this is the exact issue examined in the Congo and Nicaragua cases with respect to who "sent," within the meaning of the UN General Assembly Resolution 3314 "Definition of Aggression," the alleged armed attackers. (180)
This very troubling aspect of cyber attribution has spawned considerations toward changing the international legal standards of attribution. Altering standards to make the State-linkage less important than finding the actor has been one proffered approach, (181) and even lessening the standards of attribution so as to impute state responsibility for conduct within its borders has been another. (182) None of the proposed methodologies, however, have supplanted the customary international law approach to attribution as applied by the ICJ, wherein the conduct must be "by[,] or on behalf of[,] a State." (183)
For these reasons, authors in the operational field have stated that "attributing cyber attacks is untenable and because of this fact, deterrence by threat of response in the cyber domain is unrealistic." (184)
As if the near-impossibility of attribution were not enough, the second serious problem in potential ICJ review of a self-defensive response to a cyber intrusion will be the inherent difficulty with any malicious cyber-only activity rising to the level of an armed attack. As discussed above, over time the customary international law standard of an armed attack as only "the most grave forms of the use of force," and in particular the way in which the ICJ has applied that requirement, has become an unreasonably high threshold, sometimes only short of all-out war. (185)
In the Congo case, the ICJ declined to definitively say that the killing or capture of 200 Ugandans by paramilitaries was enough to exceed the armed attack threshold. (186) In the Nicaragua case, it distinguished between armed attacks and "mere frontier incidents]," (187) where apparently there some lesser, acceptable amount of shooting and killing occurred. In the Oil Platforms case, the Court decided that a missile strike, gunboat attacks, and minelaying, assuming proper attribution, would still not rise to the level of "armed attack." (188) Given these actual examples from the ICJ, it is hard to imagine an incident stemming from a cyber-only capability that will result in an outcome tantamount to the gravest of attacks occurring when compared to bombardments, invasions, blockades, and military occupations. (189)
However, commentators seeking to predict a "cyber armed attack" often rely on two methods to bridge the obvious gulf between cyber-only capabilities and effects and the types of occurrences the ICJ considers an armed attack. The first is simply to expropriate the effects from some other physical method of destruction and label it as the outcome of a "cyber attack." The second is to apply tests or characterizations to the armed attack standard in such a way as to "widen the legal loop," which ultimately captures some cyber incidents that would likely not even be considered by the ICJ.
The first method is demonstrated by authors whose primary theoretical scenarios resemble the following: "the enemy hacks into your system and launches your own missiles at your capital," or "the enemy electronically infiltrates your nuclear reactor controllers, intentionally causing a meltdown killing thousands," or "the enemy uses computer intrusion to intentionally open a dam, killing thousands along the river." These over-the-top scenarios are employed, it would appear, with the intent of establishing that this is clearly a "cyber attack" that results in being termed an "armed attack." And, while it does certainly seem correct to say that these events, if done intentionally, would reach the threshold of constituting armed attack, what is common in many of these scenarios is that the cyber capability employed does not appear to be the important variable in the attack. That is to say, a single spy could be sent to infiltrate the launch facility, the nuclear reactor, or the dam in order to "flip the switch" and cause the same physical results; this change in delivery method does not change the legal characterization of the event, as it is neither the cyber capability nor the person involved that matters in the ultimate legal determination, but simply that a State has intentionally caused widespread destruction and death, with "scale and effects" (190) such that it amounts to an armed attack. So, it appears that the preceding examples stretch the bounds of semantics and pedantry when commentators demand they be acknowledged as "cyber attack amounting to an armed attack," when instead they might more simply and accurately be considered a missile strike, a nuclear/radiological attack, etc. The cyber capability only amounts to the means of conveying the message, and not the infrastructure that causes the effects. This is why, when analyzing a so-called "cyber-only" capability, the argument of armed attack can virtually be rendered a reductio ad absurdum under current ICJ-interpreted international legal standards.
The second method used to avoid the reality of the international legal regime's armed attack threshold is the employment of any academic analysis which seems to lower the threshold without regard for the actual law. The primary example of this is the oft-cited "effects test" originally proposed by Professor Michael N. Schmitt in the 1990s. (191) In his original article, Prof. Schmitt seeks to locate the "line of demarcation" between coercion and force, and in order to do so begins "by reflecting upon the underlying motivation for the instrument-based distinctions." (192) Schmitt goes on to say that the following list are "among the most determinative" in examining factors that relate to consequences of a given method: severity, immediacy, directness, invasiveness, measurability, and presumptive legitimacy. (193) Again, Schmitt proposes these as factors to look at when deciding whether something looks more like political and economic coercion or armed force. (194)
What this list of considerations has meant for commentators who wish to see a cyber incident classified as an armed attack, however, is a quasi-legal "test" that can be used to arbitrarily assign numerical values to outcomes from cyber capabilities, and "determine[s] the overall level of forcefulness, which is either above or below the Article 2(4) threshold." (195) The problem with this approach is that the "effects test," or "Schmitt test" is not the controlling international law, nor any kind of actual legal test. The international law remains that the use of armed force which through its "scale and effects" rises to the level of one of the "most grave forms of the use of force" crosses the threshold of armed attack. That is it. Even Prof. Schmitt himself, when incorporating his test into the commentary of the Tallinn Manual on the International Law Applicable to Cyber Warfare, notes that "[i]t must be emphasized that they are merely factors that influence States making use of force assessments; they are not formal legal criteria." (196)
C. Employment of Countermeasures
With practical and political roadblocks making Security Council authorization for a post-cyber incident response using force highly improbable, and the actual international law making ICJ determination that an employed cyber capability was an "armed attack" even more remote than that, it is necessary to turn to the third possible international legal avenue: the employment of countermeasures.
This possibility appears vastly more legally justifiable, at least in part, because of the practical reality involved. Ironically, Prof. Schmitt, whose "effects test" has become the lynchpin of success for those who advocate for the actuality of cyber armed attack, states that "preoccupation with cyber armed attacks is counter-experiential," because "[f]ew, if any, cyber operations have crossed the armed attack threshold." (197)
For those who do not agree with Prof. Schmitt, one must only re-examine an important issue before the ICJ when these issues arose: international State practice regarding what the victim States have to say at the time of the act. For instance, when later determining whether the Uganda incidents were armed attacks, the Court said that while Uganda claims "to have acted in self-defense, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC." (198) This is at issue because, in the Nicaragua case, the Court previously stated that "the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defense." (199)
When transposed to the modern era, and in the context of cyber conflict, it is notable that no state has made a formal report claiming to be the victim of any cyber capability that "constitutes an "armed attack" giving rise to a right of self-defense under Article 51 of the U.N. Charter," and not only this, but, "[n]or has any state argued that cyber-attacks generally constitute a prohibited use of force." (200)
If state practice has established that the international unfriendly cyber capabilities employed on an ongoing basis among States fall well below the existing thresholds of "use of force" and "armed attack," these international wrongs can be dealt with through permissible countermeasures. (201) This proposition likely does not comfort those who seek to lower the notional threshold for cyber armed attack (and, thereby, expand the opportunity for Article 51-based self-defense). This is particularly so because, as embodied in Article 50 of the Articles on State Responsibility, the use of countermeasures does not give States the right to violate Article 2(4)'s prohibition against the threat or use of force. (202)
However, in this context it is again helpful to examine established and ongoing state practice. The ICJ did just this when determining whether incidents amounted to a use of force or armed attack, or were what the ICJ termed mere frontier incidents or interventions. State practice and the Security Council's treatment of disputes indicate that as the threshold for armed attack has continually gotten higher, so too has the line between intervention (and resulting countermeasures) and the impermissible use of force. Iran's complaint to the Security Council in 2012 provides an example of this trend. Iran characterized Israel's countermeasures as impermissible intervention through "state-sponsored terrorism" in reference to Israel allegedly killing Iranian nuclear scientists in response to acts of terrorism imputed to Iran, but the Council did not sustain a claim of intervention, let alone characterize the activities as a use of force or armed attack. (203)
Similar examples also demonstrate this trend. After the ceasefire agreement de-escalating the 2008 five-day war between Russia and Georgia was signed, it was discovered that Russian forces continued to conduct small raids to destroy equipment and arms in Georgia. (204) These raids were intended (per Russia) to ensure" demilitarization of the Georgian armed forces" after there had been small cross-border incursions by said Georgian forces. There was no resultant Security Council decision or ICJ finding which concluded that these raids amounted to a use of force or armed attack. (205)
In 2014, after a Syrian missile crossed the border and killed one Israeli boy and wounded three other civilians, the Israeli Air Force launched a limited countermeasure strike the next day, destroying two tanks and seven army posts in Syria. (206) While Syria decried the Israeli response as a "violation of its sovereignty" (207) (i.e., an intervention) neither side made petition to the Security Council or ICJ, or claimed the acts by one or the other were impermissible uses of force or armed attacks.
Finally, international legal commentators were nearly unanimous in declaring that the firing of 23 cruise missiles at Iraqi Intelligence headquarters by the United States in 1993 was unjustifiable on the basis of self-defense after the attempted assassination of the President. (208) However, the proffered United States justification that the limited strikes were "designed to damage the terrorist infrastructure and deter further acts" resulted in a majority of the members of the Security Council treating the strikes as a legally-justifiable countermeasure. (209)
It is fair to say that the treatment of these actions has certainly not reached a level of international legal consistency. However, the Id's own distinction between prohibited armed force and "mere frontier incidents," coupled with both the explicit and tacit approval by the UN Security Council of limited strikes and targeted killings as countermeasures, appear to provide a window for the use of conventional military capabilities as a countermeasure in certain scenarios.
With the increasing fear that states will begin responding to cyber-only intrusions through traditional military means, (210) concerns abound. These concerns include the indeterminacy and inconsistency that plagues international legal regimes of traditional arms control, (211) to include nuclear and biological weapons, creeping into the new world of regulating mis-labeled "cyber weapons." These concerns also envisage a downward spiral of hostile responses to cyber capabilities that become a disproportionate and dangerous, yet somehow legal, descent into unending and largely un-attributable retributive uses of force.
Judge Simma expressed his own opinion about the ambiguities in the use of force legal regime, observing in his separate opinion to the Oil Platforms case, "[w]e currently find ourselves at the outset of an extremely controversial debate on the further viability of the limits on unilateral military force established by the United Nations Charter." (212) His primary concern was a practical one:
[O]utside the court-room ... more and more, legal justification of use of force within the system of the United Nations Charter is discarded even as a fig leaf, while an increasing number of writers appear to prepare for the outright funeral of international legal limitations on the use of force. (213)
This concern, while possibly overdramatic, is not unfounded. Former General Counsel to the State Department Abraham Sofaer, retorted that the current majority legal view regarding the Security Council's "monopoly on the lawful use of force grows from a mix of arguments that have thus far won the day in international legal circles, even though they have no credibility among national security professionals." (214) Sofaer further stated, "[t]he ICJ, the learned societies, the bar association, committees, and most scholars assert, as irrefutable doctrine, positions that are neither mandated by the language or history of the Charter, nor supported to any significant degree in the practice of states." (215)
These opinions on the future of use of force concepts aside, the combination of law and politics makes it clear that in any likely scenario an authorization by the UN Security Council to use force against a cyber-only capability is dubious at best. There is also little chance that the ICJ would ever make a finding that a cyber intrusion was an "armed attack" based on its excessively-high thresholds for the "use of force" and "armed attack" as coupled with the unwillingness to attribute any hostile action to a State which does not openly declare ownership of said action. What these ever-taller international hurdles for the "use of force" and "armed attack" leave, however, is more room 'below the line' for incidents to be considered as interventions and countermeasures, and a strong realpolitik desire to use this expanding territory.
Many would argue that sanctioned violence on a large scale in response to cyber capability is unlikely because of the UN's "monopoly on the lawful use of force," as Sofaer puts it. (216) However, the overwhelmingly-negative outcomes from such a trend may provide just as strong reason to avoid such a scenario. A similar attitude is betrayed in a number of recently-released documents from the mid-1940s which capture an international dialogue between the allied powers debating whether they should attempt a series of strategic assassinations in concert with the D-Day invasion at Normandy. (217) The riveting back-and-forth dialogue consisting of typed memos and handwritten notes covers everything from the most high-value of targets to the potential legal intricacies of assassinating otherwise-lawful targets right before or right after capture as a POW. In the midst of the discussion one official summed up his vote against the plan with a rather un-legalistic analysis in May of 1944:
I ... dislik[e] this scheme, not out of squeamishness, as there are several people in this world whom I could kill with my own hands and with a feeling of pleasure and without that action in any way spoiling my appetite, but I think that it is the type of bright idea which in the end produces a good deal of trouble and does little good. (218)
This sentiment might capture the best reasons that national leaders have avoided launching missiles in response to a traffic light system being hacked, or the threat of a nuclear device in response to damage to SCADA systems. States retain the ability to operate 'below the line,' and thereby engage in limited, targeted military countermeasures as a way to combat (and potentially deter) the most damaging of offensive cyber capabilities. As long as this ability exists, the utility of large-scale military operations in response to a cyber-only scenario will continue to be outweighed by the dangerous precedents set and the likely international legal, economic, and diplomatic backlash that would be felt for decades to come.
MAJOR JASON F. KEEN *
* Major Jason F. Keen, USAF (B.A., Iowa State University (1995); J.D., University of Minnesota Law School (2002); M.S., Air Command and Staff College (2012); LL.M., University of Nebraska College of Law (2014)) is the Chief of Cyber Special Programs Law, Headquarters 24th Air Force/ Air Forces Cyber, Office of the Staff Judge Advocate. He is a member of the Minnesota Bar. This article was prepared in partial satisfaction of the degree of Master of Laws in Space, Cyber, and Telecommunications at the University of Nebraska School of Law, using only publicly-available information. The author wishes to thank Professor Jack Beard for his insight into the real-world analysis of ongoing state practice in the cyber domain, and Julie, Connor, and Megan for their unwavering energy and assistance in completing this project. The views expressed in this paper are those only of the author and do not reflect the official policy or position of the Department of the Air Force, the Department of Defense, or any other U.S. Government agency.
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(22) U.S. Const, art. I, [section] 8.
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(24) 18 U.S.C. [section] 2331 (2013).
(25) U.N. Charter art. 2, para. 4.
(26) See id.; U.N. Charter art. 51.
(27) U.N. Charter art. 39.
(28) U.N. Charter art. 42.
(29) U.N. Charter art. 51.
(30) Titiriga Remus, Cyber-attacks and International law of armed conflicts; a "jus ad bellum" perspective, 8 J. Int'l Commc'n L. & Tech. 179, 180 (2013).
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(32) U.N. Charter Preamble.
(33) Goodrich & Hambro, supra note 31, at 3.
(34) Kellogg-Briand Pact, Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57.
(35) Goodrich & Hambro, supra note 31, at 69.
(36) See generally Quincy Wright, When Does War Exist?, 26 Am. J. Int'l L. 362 (Apr. 1932), available at http://www.jstor.org/stable/2189362.
(37) Goodrich & Hambro, supra note 31, at 70.
(38) Albrecht Randelzhofer & Oliver Dorr, Article 2(4), in The Charter of the United Nations: A Commentary 200, 208 (3d ed. 2012).
(39) U.N. Charter art. 2, para. 4.
(40) G.A. Res. 2625 (XXV), U.N. Doc. A/RES/25/2625 (Oct. 24,1970).
(42) G.A. Res. 42/22, U.N. Doc. A/RES/42/22 (Nov. 18, 1987).
(43) Marko Divac Oberg, The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ, 16 Eur. J. Int'l L. 879, 897-99 (2005).
(44) Goodrich & Hambro, supra note 31; cf. Randelzhofer & Dorr, supra note 38.
(45) G.A. Res. 2625, supra note 40.
(46) Doc. 784,1/1/27, 6 U.N.C.I.O. Docs 331, 334-35 (1945).
(47) See generally U.N. Charter art. 2 (declaring that the Charter is founded upon concepts of the "sovereign equality" of all member states, who enjoy the right to "self-determination").
(48) See Comment, The Use of Nonviolent Coercion: A Study in Legality Under Article 2(4) of the Charter of the United Nations, 122 U. Pa. L. Rev. 983, 996 (1974).
(49) Geoffrey B. Demarest, Espionage in International Law, 24 Denv. J. Int'l L. & Pol'y 321, 325-26(1996).
(50) Christopher D. Baker, Tolerance of International Espionage: A Functional Approach, 19 Am. U. Int'l L. Rev. 1091 (2004).
(51) Roger D. Scott, Territorially Intrusive Intelligence Collection and International Law, 46 A.F. L. Rev. 217,218(1999).
(52) Thomas C. Wingfield, Legal Aspects of Offensive Information Operations in Space, 9 USAFA J. Legal Stud. 121, 140 (1999).
(53) Georg Kerschischnig, Cyberthreats and International Law 123 (2012).
(57) See, e.g., Leung Fiona Nga Woon, Resolving the Conundrums in Articles 2(4) and 51 of the Charter of the United Nations--A Matter of Treaty Interpretation (2010), http://lbms03.cityu.edu. hk/oaps/slw2010-4635-lnw806.pdf.
(58) U.N. Charter art. 51.
(59) General Pact for Renunciation of War: Text of the Pact as Signed. Notes and Other Papers, (U.S. Gov't Printing Off., 1928).
(60) United States, Identic Notes of the United States to Other Governments in Relation to the Kellogg-Briand Pact along with all the Relevant Replies, 22 Am. J. Int'l L. Supp. 109 (1928).
(61) U.N. Charter art. 51.
(62) Kerschischnig, supra note 53, at 111.
(63) Yoram Dinstein, War, Aggression, and Self-Defense 209 (4th ed. 2005).
(64) See generally Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (2010).
(65) Dinstein, supra note 63, at 209.
(67) Id. at 210.
(70) Id. at 237.
(73) See generally Orin S. Kerr, Ex Post: A Theory of Law, 16 Green Bag 2D 111 (2012).
(74) See generally Elizabeth Wilmshurst, Principles of International Law on the Use of Force in Self-Defense, 55 Int'l & Comp. L.Q. 963, 966 (2005); W.H. Taft IV, Self-Defense and the Oil Platforms Decision, 29 Yale J. Int'l L. 295, 300-01 (2004).
(75) Matthew C. Waxman, Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4), 36 Yale J. Int'l L. 421, 431 (2011).
(76) Id. at 427; see U.S. Const, art. I, [section] 8.
(77) James Crawford, Brownlie's Principles of Public International Law 747 (8th ed. 2012).
(79) Albrecht Randelzhofer & Georg Nolte, Article 51, in The Charter of the United Nations: A Commentary 1397, 1403 (3d ed. 2012).
(80) Waxman, supra note 75, at 427.
(81) Dinstein, supra note 63, at 193.
(82) Randelzhofer & Nolte, supra note 79, at 1402.
(83) Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice: 1948-1991, U.N. Doc. ST/LEG/SER.F/1 125 (1992).
(85) Id. at 161.
(86) Id. at 126.
(87) Id. at 129.
(88) Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 103 para. 195 (June 27) [hereinafter Nicaragua Case].
(89) Id. at 101 para. 191.
(90) Id. at 96 para. 181.
(91) Id. at 103 para. 195.
(92) Id. at 110 para. 211.
(93) Id. at 64 para. 115.
(94) Id. at 65 para. 116.
(95) Id. at 65 para. 115 (emphasis added).
(96) Id. at 127 para. 249.
(97) Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice: 2003-2007, U.N. Doc. ST/LEG/SER.F/1/Add.3 1, 138-39(2008) [hereinafter "Summaries of Judgments 2003-2007"].
(98) Id. at 138.
(99) Id. at 140.
(101) Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 168, 225 para. 157 (Dec. 19) [hereinafter Congo Case].
(102) Id. para. 156.
(103) Id. at 226 para. 160 (internal quotations omitted).
(105) Id. at 223 para. 146.
(106) Id. (emphasis added).
(108) Id. at 223 para. 147.
(109) Summaries of Judgments 2003-2007, supra note 97, at 20.
(111) Id. at 18, 20.
(112) Treaty of Amity, Economic Relations and Consular Rights, U.S.-Iran, Aug. 15, 1955, 8 U.S.T. 899 (entered into force June 16, 1957).
(113) Summaries of Judgments 2003-2007, supra note 97, at 18.
(114) Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 182 para. 41 (Nov. 6) [hereinafter Oil Platforms Case],
(115) Id. at 190 para. 61.
(116) Id. at 187-90.
(117) Id. at 189 para. 58.
(118) Id. at 195 para. 71 (emphasis added).
(121) Id. at 187 para. 51.
(122) Id. at 191-92 para. 64.
(123) Id. at 192 para. 64.
(124) Id. at 324 (Simma, J., separate opinion).
(125) Id. at 327 para. 6.
(126) Id. (emphasis added).
(127) Id. at 331 para. 12.
(128) Id. at 332 para. 12.
(129) See Nicaragua Case, supra note 88, at 103-04 para. 195; Congo Case, supra note 101, at 222-23 para. 146.
(130) G.A. Res. 3314 (XXIX), U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/9631, at 142 (Dec. 14, 1974).
(131) Id. at 143.
(132) Id. art. 3.
(133) Oil Platforms Case, supra note 114, at 192 para. 64.
(134) Nicaragua Case, supra note 88, at 103 para. 195.
(135) Materials on the Responsibility of States for Internationally Wrongful Acts, U.N. Doc. ST/LEG/ SER.B/25, at 304 (2012) [hereinafter "Responsibility of States"\.
(137) Id. at vii-viii.
(138) G.A. Res. 56/83, [paragraph] 3, U.N. Doc. A/RES/56/83 (Jan. 28, 2002).
(139) Responsibility of States, supra note 135, at viii.
(140) Id. at 272.
(142) Id. at 274.
(143) Id. at 334.
(144) Id. at 309.
(146) Id. at 316.
(147) Id. at 324.
(148) Randelzhofer & Dorr, supra note 38, at 203.
(149) U.N. Charter art. 2, para. 1.
(150) U.N. Charter art. 2, para. 7.
(151) G.A. Res. 2625, supra note 40.
(153) Congo Case, supra note 101, at 227 paras. 163-64.
(154) U.N. Charter art. 24, para. 1.
(155) U.N. Charter art. 39.
(156) Id. art 25.
(157) Rudolf Geiger, Chapter V: The Security Council, in The Charter of the United Nations: A Commentary 751, 751 (3d ed. 2012).
(158) See generally Kerr, supra note 73, at 111.
(159) Sydney D. Bailey & Sam Daws, The Procedure of the UN Security Council 23 (3d ed. 1998).
(160) U.N. Charter art. 28, para. 1.
(161) Provisional Rules of Procedure, S/96/Rev.7, Rule 2 (1983) ("The President shall call a meeting of the Security Counsel at the request of any member of the Security Counsel.").
(162) Theodor Schweisfurth, Article 35, in The Charter of the United Nations: A Commentary 1108, 1117 (3d ed. 2012).
(165) Andreas Zimmerman, Article 27: Voting, in The Charter of the United Nations: A Commentary 871,926 (3d ed. 2012).
(166) U.N. Charter art. 39.
(167) Nico Krisch, Introduction to Chapter VII: The General Framework, in The Charter of the United Nations: A Commentary 1237, 1245 (3d ed. 2012).
(168) U.N. Charter art. 42.
(169) Nico Krisch, Article 41, in The Charter of the United Nations: A Commentary 1305, 1311 (3d ed. 2012).
(170) J. Eugene Harley, Documentary Textbook on the United Nations xiii (1947).
(171) See generally Bailey & Daws, supra note 159, at 22-45.
(172) U.N. Charter art. 51.
(173) Eric F. Mejia, Act and Actor Attribution in Cyberspace: A Proposed Analytic Framework, Strategic Stud. Q. 114, 115, 121 (Spring 2014).
(174) Jonathan Zittrain, Freedom and Anonymity: Keeping the Internet Open, Sci. Am. (Feb. 15, 2011), http://www.scientificamerican.com/article/freedom-and-anonymity/.
(175) See generally Tor, http://www.torproject.org (last visited May 31, 2015).
(176) Oil Platforms Case, supra note 114, at 195 para. 71.
(177) Kerschischnig, supra note 53, at 123.
(178) See generally Eric M. Hutchins, Michael J. Cloppert & Rohan M. Amin, Intelligence-Driven Computer Network Defense Informed by Analysis of Adversary Campaigns and Intrusion Kill Chains, Lockheed Martin, available at http://www.lockheedmartin.com/content/dam/lockheed/ data/corporate/documents/LM-White-Paper-Intel-Driven-Defense.pdf (last visited June 24, 2014).
(179) Erik M. Mudrinich, Cyber 3.0: The Department of Defense Strategy for Operating in Cyberspace and the Attribution Problem, 68 A.F. L. Rev. 167, 200 (2012).
(180) Congo Case, supra note 101, at 223 para. 147; Nicaragua Case, supra note 88, at 103 para. 195.
(181) Nicholas Tsagourias, Cyber Attacks, Self-Defence and the Problem of Attribution, 17 J. Conflict & Sec. L. 7 (Summer 2012).
(182) David E. Graham, Cyber Threats and the Law of War, 4 J. Nat'l Sec. L. & Pol'y 87, 93 (2010).
(183) Nicaragua Case, supra note 88, at 103 para. 195.
(184) Mudrinich, supra note 179, at 194.
(185) Nicaragua Case, supra note 88, at 101 para. 191.
(186) Congo Case, supra note 101, at 222-23 para. 146.
(187) Nicaragua Case, supra note 88, at 103 para. 195.
(188) Oil Platforms Case, supra note 114, at 191-92 para. 64.
(189) See generally G.A. Res. 3314, supra note 130.
(190) Nicaragua Case, supra note 88, at 103 para. 195.
(191) See Michael N. Schmitt, Computer Network and the Use of Force in International Law: Thoughts on a Normative Framework, 37 Colum. J. Transnat'l L. 885, 914 (1999).
(194) See id. at 912-14.
(195) Thomas Wingfield, The Law of Information Conflict: National Security Law in Cyberspace 122 (2000).
(196) International Group of Experts, Tallinn Manual on the International Law Applicable to Cyber Warfare 48 (Michael N. Schmitt ed., 2013).
(197) Michael N. Schmitt, "Below the Threshold" Cyber Operations: The Countermeasures Response Option and International Law, 54 Va. J. Int'l. L. 697, 698 (2014).
(198) Congo Case, supra note 101, at 222 para. 146.
(199) Nicaragua Case, supra note 88, at 105 para. 200.
(200) Hathaway et al., supra note 16, at 840.
(201) Responsibility of States, supra note 135, at 272.
(202) Id. at 316.
(203) JerusalemPost.com Staff, Iran protests to UN: Israel killing our scientists, Jerusalem Post (Feb. 23, 2012), http://www.jpost.com/Iranian-Threat/News/Iran-protests-to-UN-Israel-killing-ourscientists.
(204) Mikhail Barabanov, The August War between Russia and Georgia, Moscow Defense Brief (Oct. 22, 2008), available at http://www.defenceweb.co.za/index.php?option=com_content&view=article &id=540&catid=61%3Aeditor-column&Itemid=119.
(206) Gili Cohen, Ten killed in Israeli strike on Syrian military targets, Haaretz (June 23, 2014), http://www.haaretz.com/news/middle-east/1.600486.
(207) Jack Khoury, Syria: Israeli strike flagrant violation of sovereignty, Haaretz (June 23, 2014), http://www.haar etz.com/news/diplomacy-defense/1.600680 (internal quotation omitted).
(208) Randelzhofer & Nolte, supra note 79, at 1406.
(209) Id. See also Baker, supra note 50.
(210) Hathaway et al., supra note 16, at 840.
(211) See generally Jack M. Beard, The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention, 101 Am. J. Int'l L. 271 (2007).
(212) Oil Platforms Case, supra note 114, at 328 para 6. (Simma, J., separate opinion).
(214) Abraham D. Sofaer, International Security and the Use of Force, in Progress in International Law 541, 549 (Russell Miller & Rebecca Bratspies eds., 2008).
(215) Id. at 550.
(216) Id. at 549.
(217) Mark Stout, (W) ARCHIVES: KILL HITLER? OH. I GUESS SO, War on the Rocks (June 20, 2014), http://warontherocks.com/2014/06/warchives-kill-hitler-oh-i-guess-so/ (referencing the release of Foreign Office file FO 1093/292, with the moniker "War: General; Assassination Priorities for OVERLORD.").
(218) Id. (alterations in original).
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|Author:||Keen, Jason F.|
|Publication:||Air Force Law Review|
|Date:||Jun 22, 2015|
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