CYIL vol. 12 (2021)

CYIL 12 (2021) PREEMPTIVE SELF-DEFENCE IN CYBERSPACE shown by States other than the veto holders at the San Francisco conference in the collective security system without having their basic right expressly guaranteed. Finally, it is important to note that Article 51 is applicable to any armed attack regardless of the weapon used, including cyberattack. ICJ in its Nuclear Weapons advisory opinion confirmed that the UN Charter provisions concerning the threat and use of force “do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed” 32 . Cyberattacks via viruses, worms and other digital vectors are thus involved. The legal qualification of the cyber interference and whether it reaches the threshold of an armed attack then depends on the scale and effects of the operation in comparison with a conventional physical armed attack. The effects-based doctrine developed by the ICJ in the Nicaragua Case referred to “scale and effects” as the determining factor whether particular actions amount to an “armed attack”. 33 With respect to the definition of an armed attack as such, it is noteworthy to remind the position of the ICJ affirming it is necessary “to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms” 34 . It refers to “a general agreement” 35 reflected in the Definition of Aggression annexed to the UN General Assembly Resolution 3314 (XXIX) (1974). This approach seems to be consensual among the States. 36 France, for example, reaffirms that “a cyberattack may constitute an armed attack within the meaning of Article 51 of the United Nations Charter, if it is of a scale and severity comparable to those resulting from the use of physical force”. 37 For the moment, no State has declared a cyberattack as an armed attack in light of Article 51. In theory, deactivating the dam management system and opening the security ramp leading to an inundation of an adjacent valley city with grave material devastation and loss of lives; attacking the central air traffic control system regulating the dense air traffic above a metropole leading to crashes and loss of lives; or fatalities caused by the loss of computer-controlled life support system can all be produced both by conventional and digital weapons. Some cyberattacks targeting a health care facility, such as the ransomware attack in September 2020 on the computers of the University Hospital of Düsseldorf, the that “it is beyond dispute that the negotiators deliberately closed the door on any claim of ‘anticipatory self- defense’”, Franck, T. M., Recourse to force: State action against threats and armed attacks . 2002, Cambridge, p. 50. For the same view see Corten, O., The law against war: The prohibition on the use of force in contemporary international law . 2010, Oxford, pp. 414–416. 36 Among the States who have expressed their stand, see notably the UK, Attorney General, op. cit. note 3; Netherlands, The Netherlands’ position paper on the UN Open-ended Working Group “on Developments in the Field of Information and Telecommunications in the Context of International Security” and the UN Group of Governmental Experts “on Advancing responsible State behavior in cyberspace in the context of international security”, Appendix: International law in cyberspace , 2020, available at p. 8; Iran, Declaration of General Staff , op. cit. note 14, Art. 4 (2); Finland, International law and cyberspace , op. cit. note 12, p. 6; Australia, Australian paper , 2019, 2019 – Supplement , op. cit . note 10; and Germany, The Federal Government, op. cit. note 28, p. 15. Germany, however, notes that the qualification as armed attack “is not made based only on technical information, but also after assessing the strategic context and the effect of the cyber operation beyond cyberspace. This decision is not left to the discretion of the State victim of such a malicious cyber operation, but needs to be comprehensibly reported to the international community, i.e. the UN Security Council, according to art. 51 UN Charter”, ibid . 37 Ministry of the Armed Forces, op. cit. note 7, p. 8. 32 Nuclear Weapons , op. cit. note 29, § 39. 33 Nicaragua Case, op. cit. note 21, § 195. 34 Ibid ., §§ 191 and 195. 35 Ibid .


Made with FlippingBook - Online catalogs