CYIL vol. 12 (2021)

martina Šmuclerová CYIL 12 (2021) Session 2012-13 – Defence Committee , the UK Government noted: “If the UK is responding to an imminent or actual cyber attack the response is governed by the legal principles of necessity, proportionality and imminence where anticipatory self-defence is concerned. The test, including the evidential base of what would be considered an imminent attack, is high.” 5 Similarly, Paul C. Ney, Jr., DODGeneral Counsel remarked at the U.S. Cyber Command Legal Conference in 2020 that “in the exercise of its inherent right of self-defense a State may use force that is necessary and proportionate to respond to an actual or imminent armed attack. This is true in the cyber context just as in any other context.” 6 Both long-term proponents of preemptive self-defence apply such stand to the cyberspace. The concept of preemptive self-defence against a cyberattack constitutes one the most progressive points also in the national strategy document of France International law applied to operations in cyberspace (2019) 7 . Although France stresses the application of Article 51 onto the cyberattacks attaining the level of an armed attack, it admits particularities in the cyber domain: “In exceptional circumstances, France allows itself to use preemptive self-defence in response to a cyberattack that ‘has not yet been triggered but is about to be, in an imminent and certain manner, provided that the potential impact of such an attack is sufficiently serious’”. 8 France, however, clearly rejects “the legality of the use of force on the grounds of preventive self-defence”, which it defines as “self-defence […] exercised in response to a potential armed attack, i.e. one that is latent and more or less likely to occur in the future.” 9 Australia, too, has publicly recognized and justified the right to preemptive self-defence in cyberspace as follows: “[I]f a cyber operation – alone or in combination with a physical operation – results in, or presents an imminent threat of, damage equivalent to a traditional armed attack, then the inherent right to self-defence is engaged. The rapidity of cyber attacks, as well as their potentially concealed and/or indiscriminate character, raises new challenges for the application of established principles.” 10 It cites Senator the Hon. George Brandis QC who illustrates the danger: “Consider, for example, a threatened armed attack in the form of an offensive cyber operation (and, of course, when I say ‘armed attack’, I mean that term in the strict sense of Article 51 of the Charter). The cyber operation could cause large-scale loss of human life and damage to critical infrastructure. Such an attack might be launched in a split-second. Is it seriously to be suggested that a state has no right to take action before that split-second?” 11 5 Defence Committee – Sixth Special Report. Defence and Cyber-Security: Government Response to the Committee’s Sixth Report of Session 2012-13 , 19 March 2013, para. 10, available at . 6 Hon. Paul C. Ney, Jr. (2020), DOD General Counsel remarks at U.S. Cyber Command legal conference , March 2, 2020, U.S. Department of Defense, available at . 7 Ministry of the Armed Forces, France, International law applied to operations in cyberspace , 2019, available at . 8 Ibid ., p. 9. 9 Ibid . and note 35. 10 Australian paper – Open ended working group on developments in the field of information and telecommunications in the context of international security, September 2019, Annex A 2017 – Australia’s position on the application of international law to state conduct in cyberspace , 2019, OEWG (10-14 February 2020), available at>. 11 Ibid ., Figure 1 – Imminence and cyber operations .


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