CYIL 2015

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. 45 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; 46 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 45 WEISBORD, N., Conceptualizing aggression, Duke J. Comp. & Int’l L ., vol. 20, 2009-2010, 1-68, p. 40. 46 WILMHURST, E., Principles of International Law on the Use of Force by States in Self-Defence, Chatman House, October 2005, p. 6.

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