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KRISTÝNA URBANOVÁ

CYIL 6 ȍ2015Ȏ

violation of the UN Charter. Thus the model based on different degrees of gravity is

similar to both conceptions.

However, while it is agreed here that political or economic coercion, such as an

embargo would not satisfy the test of “use of armed force” in Article 8 bis, a broader

interpretation of this term in relation to the cyber-warfare is also suggested.

The

law governing the right to self-defence requires an armed attack, but why could a

cyber-attack not

per se

satisfy such a demand? Considering its possible devastating

effect, there is no need to treat it differently than as a military weapon. It might be

objected that economic embargos also can have a massive impact on a victim state;

however, the difference is that that effect is far more remote than the one possibly

caused by cyber-attacks. Due to their possible direct effect cyber-attacks should be

treated as any other conventional weapons, even in the lack of immediate physical

destruction. Not the choice of weapon but the character and gravity of the direct

effect should be the decisive element whether an act can qualify as use of “armed

force”. The collapse of the stock-exchange market through malware may negatively

influence the state’s functioning, but could hardly meet the conditions of Article 8

bis. However, could the same be concluded about a long-term destruction of the

water, energy and traffic systems, combined with the collapse of the governmental

network system and emergency services? The dependency of today’s states’ crucial

components on information technologies, and the possibility of imminent and direct

effect of cyber-attacks justifies the negative answer for that question; the meanings

of cyber-warfare should be treated as weapons. Hence, the decisive moment should

be the consideration of whether the use of force is of certain gravity, i.e. if the cyber-

attack caused the same effect comparable to employment of more conventional

weapons, or not.

3.4 Open or exhaustive list?

The reference to UN General Assembly Resolution 3314 (“GA Resolution

3314”) and the inclusion of a list of acts which qualify as an act of aggression is

not unproblematic. The last sentence of paragraph 2 Article 8 bis, reads:

“Any of the

following acts, regardless of a declaration of war, shall, in accordance with United Nations

General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of

aggression

:…”

The list repeats the same acts as are enumerated in GA Resolution 3314, such

as an invasion or armed attack by armed forces, bombardment by armed forces,

blockade of the ports, military occupation, etc. However, there is one significant

difference between the Kampala amendment and GA Resolution 3314. The latter in

WEISBORD, N., Conceptualizing aggression,

Duke J. Comp. & Int’l L

., vol. 20, 2009-2010, 1-68,

p. 40.

WILMHURST, E., Principles of International Law on the Use of Force by States in Self-Defence,

Chatman House, October 2005, p. 6.