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

Several States have expressed their positions on this matter. The Netherlands explicitly endorsed the approach of the Manual. 622 The United States lists, among other criteria, the context of the event, the actor perpetrating the action (bearing in mind possible obfuscation techniques), the target and its location, the effects of the cyber activity, and the intent of the actor. 623 In Germany’s non-exhaustive list of criteria, it is the severity of the interference, the immediacy of its effects, the degree of intrusion into a foreign cyber infrastructure, and the degree of organization and coordination of the malicious cyber operation, which may play a significant role in the assessment. 624 Estonia, probably in light of the 2007 DDoS attacks, considers the requisites for qualification of use of force to include operations targeting critical infrastructure, yet necessarily resulting in serious damage, injury or death. 625 What is to be principally agreeable with, is the observation that any such factors should be reflected in concordance to reach an optimal conclusion over the complex matter in question. Decoding the postulated legal regime of the recourse to force in international law in a cyber context, one must not forget to draw attention to the possibly antecedent acts of threat of force. The cyber dimension of this subject may materialize either in a threat of a forceful cyber operation or a cyber threat of the use of force in a kinetic or non kinetic manner. The conditions seem otherwise similar to the threats against States in a traditional legal setup. Last but not least, any cyber operations not reaching the threshold of the use of force may however be considered as contravening other rules of the international law. Those include the principle of non-intervention in the internal affairs of States 626 going hand in hand with the obligation to respect the sovereignty of States and possible other obligations. 2. Self-defense in the cyber context The concept of self-defense, as one of the two major exceptions of the peremptory prohibition of the use of force in modern international law, represents a fundamental keystone of contemporary security architecture. Emanating from the archaic conception of bellum iustum , the right of self-defense against alien force most certainly persists as a crucial element even in the hi-tech cyber era. 622 ‘Letter to the parliament on the international legal order in cyberspace’ ( Government of the Netherlands , July 2019) , p. 4. 623 UNGA, ‘United states of America: Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States submitted by participating governmental experts in the Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security established pursuant to General Assembly resolution 73/266’, (2021) , p. 137. 624 ‘On the Application of International Law in Cyberspace, Position paper’ ( The Federal Government of Germany , March 2021), , p. 6. 625 UNODA, ‘Estonia: Official compendium of voluntary national contributions’, A/76/136, (2021), p. 26. 626 UN Charter, Art. 2 (7).

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