CYIL vol. 12 (2021)
martina Šmuclerová CYIL 12 (2021) of the operation or the nature of the intended target”. 64 As an example, France indicates “penetrating military systems in order to compromise French defence capabilities” 65 . As a simple penetration of a foreign State ICTmilitary capabilities would not probably constitute ipso facto an effective and efficient form of preemptive self-defence, although it might qualify as a use of force, the more a very paralysis of such system in order to avert an imminent cyberattack could be qualified as such. A parallel can be drawn with a violation of an airspace by units of armed force of another State without giving rise to an armed opposition and activation of the use of force by the territorial sovereign. Both ICJ and Art. 2 (4) of the UN Charter do not provide any indication and no specific threshold of gravity is fixed. It is presumed that use of armed or military force implies inherently a damage or injury caused. 66, 67 The Max Planck Encyclopedia notes that in line with State practice, “it would seem that the mere intrusion into the territory of another State that is not related to any armed operation is much more adequately dealt with under the principle of non-intervention” 68 and not as a violation of the prohibition to use force. It is therefore essential to pay attention to the form and scope of the reactive cyberoperation as it might not reach the threshold of use of force and, thus, of preemptive self-defence. The same applies to a cyberattack committed by a non- State actor or an individual attributable to a State. Quinto , can the right to self-defence in cyberspace, including preemption, be launched to evade an imminent cyberattack orchestrated by an individual with an uncertain or no link of attribution to a State? In view of the high anonymity and frequent non-traceability, such a scenario might be realistic. What form would preemptive self-defence against a non-State actor take? How would such response differ in practice from targeted sanctions? Can the element of use of force contained in self-defence be directed exclusively to the hacker without impacting the territorial integrity or political independence of another State? A self-defence operation led by conventional weapons follows the physical divide of sovereign territories, therefore a foreign State’s territory harbouring for example a terrorist group responsible for a bomb attack is necessarily impacted. The same could apply to a hacker network. Is the situation different in law if the action in self-defence resides in a digital vector targeting the hacker abroad and causing damage to his/her software or hardware and other items aimed to avert the cyberattack? The limited and targeted nature of such a digital preemptive action might raise the question of its correct legal qualification. The same issues as discussed with respect an inter-State cyberattack apply and are even more amplified. It might be for the same reasons that France emphasizes that the regime of self-defence applies exclusively to a cyberattack committed, directly or indirectly, by a State. 69 The legal 66 Meaning “material” or “physical” damage. Legal injury can potentially arise from any international wrongful act as an inherent element of the regime of State responsibility, see e.g. Stern, B., A Plea for “reconstruction” of international responsibility based on the notion of legal injury. In: Ragazzi, M. (ed.), International responsibility today: Essays in memory of Oscar Schachter . Leiden, 2005, pp. 93–106. 67 “[T]he use of political or economic means of coercion may, in a given case, be contrary to the principle of non- intervention” and therefore out of the scope of Art. 2 (4), Dörr, O., Use of force, Prohibition of, August 2019. In: Max Planck Encyclopedia , op.cit. note 23, para. 12. 68 Ibid. , para. 19. This opinion is, however, not authoritatively confirmed and generally shared in the international legal doctrine. 69 Ministry of the Armed Forces, op. cit. note 7, pp. 8–9. 64 Ibid. , p. 6. 65 Ibid ., p. 6.
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