New Technologies in International Law / Tymofeyeva, Crhák et al.

in the discourse, deserve a closer commentary and an analysis of the up-to-date scholarly discussion. Firstly, the Severity of the cyber operation is presented as the most significant factor in any such analysis. Working on the presumption that consequences of the operation in question will involve some degree of physical harm to individuals and/or property, the scope, duration, and intensity of the consequences are assumed to be influential aspects in the qualification. Secondly, the Immediacy of the manifestation of consequences is alleged to be of considerable importance vis-à-vis the hypothetical reaction, meaning that operations with repercussions deferred or distributed in time are less unlikely to be perceived and countered in a peaceful manner. The Directness of interlinkage between the initial act and its consequences is proclaimed to indicate a more transparent causal connection eventuating into a recognition of the act as a case of illegal use of force. The aspect of Invasiveness concerns the level of intrusion into a cyber system in connection to its constitution and protection against any such external interference. Intrusion into highly protected military cyber systems appears to be more disturbing than to any ordinary vulnerable system of a SME or a public institution. As consequences of cyber operations are frequently hard to quantify, the possible Measurability of effects , allowing for a more precise identification of an impact of the operation on a scale appropriate for such technical matters, is considered to simplify postulating of an attainment of the level of the use of force. The traditional conception of the UN Charter and its focus on armed force led the authors of the Tallinn Manual to emphasize the Military character of the cyber operations as one of the factors significantly affecting its evaluation and classification as unlawful use of force. A potential connection between any such operation and other conventional military actions should serve as a solid signal. Similarly, the degree of State involvement , military or not, direct or indirect, may indicate the plausibility of an infringement by that State of the cogent prohibition of the use of force in international law. The last factor of Presumptive legality appears to tend to balance the potentially expansive interpretation of cyber force towards the threshold of the use of force. The illustrious Lotus principle, stating that by the fundamentally permissive nature of international law sovereign States may act at their discretion, unless for finding themselves restricted by an explicit prohibition, 620 is indirectly alluded to by the Tallinn Manual. Besides the presented categories, the authors of the Manual recognize the importance of other factors, such as of the predominant political environment, foreseeable further military operations, the nature of the target, and the profile and previous record of the offender. 621

620 PCIJ, S.S. Lotus (France v. Turkey) Judgment [1927] PCIJ (Ser. A) No. 10, 18, p. 18. 621 Schmitt M, Tallinn Manual on the International Law Applicable to Cyber Warfare (CUP, 2013), pp. 49–52; Schmitt M, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017), pp. 333–337.

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