CYIL vol. 13 (2022)

JAKUB SPÁČIL CYIL 13 ȍ2022Ȏ Finally, the possibility of the existence of a subjective element in an armed attack can also be gleaned from the commentary to Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, in which the International Law Commission (ILC) states that “[w]hether there has been a breach of a rule may depend on the intention or knowledge of a relevant State organs or agents and in that sence may be subjective” and further adds that “whether responsibility is ‘objective’ or ‘subjective’ … depends on circumstances, including the content of primary obligation in question”. 30 Since an armed attack is necessarily an internationally wrongful act, it can be concluded that the circumstances require the existence of “intent or knowledge” on the part of the “attacking” State. Thus, it can be concluded that the practice of States, the jurisprudence of the ICJ and some experts in international law support the conclusion that animus aggressionis is a defining feature of an armed attack and that in its absence the injured State has no right to use force in self-defense. It further follows that the doctrine of “scale and effects” is inadequate for the assessment of an armed attack, as the intent of the attacker to commit the inflicted consequence must also be taken into account. 31 In other words, “scale and effects” as an objective element must be accompanied by a subjective element in the form of animus aggressionis . The infliction of material damage and loss of life in one State which originates in the territory of another State cannot be considered an armed attack in the absence of the subjective element. This reasoning can easily be illustrated by the example of an accidental dam breach in State A which would also result in flooding in State B. If it were sufficient to cause material damage or loss of human life, even that situation would have to be assessed as an armed attack, a conclusion which is patently absurd. Finally, only the conclusion that animus aggressionis is an inherent feature of an armed attack, which in turn is a prerequisite for the exercise of the right of self-defense, is consistent with the objects and purposes of the UN, since one of the main objectives of the UN is to “maintain international peace and security”. 32 The use of force by an injured State against another State in a situation where that other State has unintentionally, even if through its own negligence, caused damage to life and property in the injured State would be contrary to the objective of maintaining international peace and security. Cyber Operations and Animus Aggressionis How the above conclusions translate into considerations for assessing a cyber operation as an armed attack? First, it should be noted that there is a significant difference between kinetic attacks and cyber operations in terms of the predictability of consequences. 33 While in the 30 Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. Yearbook of the International Law Commission , 2001, vol. II, Part Two, art. 2, p. 34 (hereinafter “ARSIWA with commentaries”). Even though ARSIWA rules deal with secondary rules of international law (responsibility), they may as well serve to demonstrate relevance of subjective element in a broader context. Another supportive argument can be found in the commentary to art. 40 ARSIWA, which deals with seriousness of a breach of a norm of international law and states, among other, that „Facts which may establish the seriousness of a violation would include the intent to violate the norm…“.

31 NGUYEN, 2013, p. 1122, see supra note 2. 32 Charter of the United Nations, art. 2(4).

33 FARRELL, H., GLASER, L., C. The role of effects, saliencies and norms in US cyberwar doctrine . Journal of Cybersecurity , 2017, vol. 3, no. 1, p. 11; SINGER, W. P. Cybersecurity and Cyberwar: What Everyone Needs to Know . New York: Oxford University Press, 2013, p. 115.

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