CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ANIMUS AGGRESSIONIS: THE ROLE OF INTENT IN THE ANALYSIS OF ARMED … case of a kinetic attack (whether it is bombing, shelling or use of unconventional weapons) it is relatively easy to predict what the consequences of the attack will be (area affected, expected damage to property and lives), in the case of a cyber operation the consequences are very difficult to predict and there may be an unplanned and uncontrollable cascading effect, with the result that the actual consequences will be several times more severe than the intended consequences. 34 Thus, in the case of a cyber operation, software programmed to damage one particular computer in a foreign country can easily spread unexpectedly and damage thousands or millions of devices due to a programming error. 35 Although unintended side effects cannot be completely ruled out even with a kinetic attack, it will usually be possible to predict them with a significantly higher degree of certainty than is the case with cyber operations. Thus, it is clear that the predictability of the consequences of a cyber operation is significantly lower than that of a kinetic operation. This fact is crucial, since the predictability of the consequences of kinetic operations is the reason why animus aggressionis has historically been presumed in the case of the use of force. 36 If a State bombed the territory of a foreign state, it was legitimate to assume that the State was doing so deliberately, thus fulfilling the subjective element of armed attack (but with the possibility of proving otherwise – see the Chinese embassy in Belgrade example above). In the case of cyber operations, however, the situation differs greatly precisely because of their unpredictability, and to infer animus aggressionis from the extent of the damage caused by such an operation without taking into account other criteria is inadequate, as this could easily lead to the erroneous conclusion of the existence of an armed attack, which could of course lead to a further escalation of the conflict. As Nguyen rightly states, “…the disconnect between intent, cause, and effect renders effect a poor proxy for force”. 37 Given that most cyber operations are attributed to nuclear powers then there is no need to elaborate on what consequences a possible escalation of conflict could lead to and why the issue of animus aggressionis is crucial. 38 Thus, it can be concluded that in the case of major kinetic attacks, the presumption of animus aggressionis is justified, but in the case of a cyber operation, it is not possible to 34 SCHMITT, N. M. Computer Network Attack and the Use of Force in International Law:Thoughts on a Normative Framework. Columbia Journal of Transnational Law , 1999, vol. 37, p. 893; WAXMAN, 2011, p. 445, see supra note 4; NGUYEN, 2013, p. 1099, see supra note 2; SIMMONS, 2014, p. 51, see supra note 4; FARRELL, GLASER, 2017, p. 11, see supra note 33; AKANDE, D. et al. The Oxford Statement on International Law Protections in Cyberspace: The Regulation of Ransomware Operations [online]. EJILTalk.org, 4 October 2021 [accessed 14 March 2022]. Available at < https://www.ejiltalk.org/the-oxford-process-on-international-law-protections-in-cyberspace the-regulation-of-ransomware-operations/>; SANGER, E. D., BARNES, E.. J., KONGER, K. As Tanks Rolled Into Ukraine, So Did Malware. Then Microsoft Entered the War [online]. NYTimes.com, 28 February 2022 [accessed 14 March 2022]. Available at < https://www.nytimes.com/2022/02/28/us/politics/ukraine-russia microsoft.html>. 35 FARRELL, GLASER, 2017, p. 11, see supra note 33; The impossibility of guaranteeing the limitation of the effects of the cyber operation on Iraqi territory was the reason why the United States did not proceed with its implementation during Operation Iraqi Freedom, see PALOJÄRVI, P . A Battle in Bits and Bytes: Computer Network Attacks and the Law of Armed Conflict . Helsinki: The Erik Castrén Institute of International Law, 2009, pp. 32–33. 36 RUYS, 2011, p. 163, see supra note 18. 37 NGUYEN, 2013, p. 1122, see supra note 2. 38 VAN DER MEER, S. Cyber Warfare and Nuclear Weapons: Game-changing Consequences? [online]. Clingendael. org, 12 December 2016 [accessed 14 March 2022], pp. 37-38. Available at < https://www.clingendael.org/sites/ default/files/2016-02/SWP_Paper_Chapter_Sico_van_der_Meer.pdf>.

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