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CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE…
operations may be and are as a routine organized within existing armed conflicts.
But there is also serious concern that cyber operations might fall within the scope
of use of force under
ius ad bellum
. The last NATO meeting in Warsaw this year
designated this threat as one of serious risk to international security. In connection
with some cyber operations or attacks, a serious question has been raised as to
whether some cyber operations may separately constitute an armed conflict, giving
rise to a right of self-defence. A positive reply in this respect was given in the “Tallin
manual”. Under this manual cyber operations may constitute an armed attack if
their scale and effects mirror those of a traditional kinetic attack. The ILA Report
describes this claim as “an emerging view, but it warns at the same time that any
such conclusion must be reached with great caution. A “wide” interpretation of
Art. 2 (4) and 51 may affect the interpretation of the law of use of force. It was noted
that the vast majority of cyber attacks do not reach the thresholds for either use of
force or armed attack.
79
So far no example may be given that any cyber operation
has already reached the level of “armed attack”. There are still only (hypothetical)
considerations about the possibility of using in response not only a counter-cyber
operation but also a kinetic force in self-defence. There is no doubt that a cyber
operation can take place in any kinetic attack. But it is already admitted that a cyber
operation alone may be considered under
ius ad bellum
as an “armed attack”. If
this conclusion on cyber attack as an “armed attack” were to be trustworthily
reached, there must be some proof that cyber operations may be separately equated
to a kinetic force threshold. Otherwise separate cyber operations would be difficult
to include in the scope of armed attack. As a rule cyber operations related to the use
of military force will take place in the framework of kinetic attack.
8. Conclusions
The prohibition of the use of force in Art. 2 (4) is a cornerstone of the UN
Charter and the contemporary world order generally. The rule on the use of force
is also a part of customary international law. According to the UN Charter there
are two exceptions from this prohibition. The first one is the exercise of the right of
individual or collective self-defence, and the second one is an armed action taken or
authorized by the UNSC. It is possible to say that the UN Charter radically changed
the international law governing the use of force (
ius ad bellum
). Nevertheless, the
prohibition of use of force and the concept of self-defence have been until now
unfortunately a matter of controversy in the legal theory and practice of states as
well. This contribution is trying to critically reflect the main doctrines and theories
limiting the prohibition of the use of force. The most discussed issues include
the “real development” limiting in exceptional cases the prohibition of the use of
military force, contained in the Art. 2 (4) of the UN Charter. This article deals with
79
Ibid
., p. 26.