CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ANIMUS AGGRESSIONIS: THE ROLE OF INTENT IN THE ANALYSIS OF ARMED … and circumstances”. 62 The way malware is programmed, the accuracy of targeting, internal safeguards to prevent uncontrolled spread, the self-destruct mechanism, etc., may then be relevant sources of information on intent. Of course, official declarations by states are also an option (see the example of NATO and the attack on the Chinese embassy in Belgrade), although given the limited attributability of cyber operations, this type of information is likely to be less common. In conclusion, even if the view that animus aggressionis is not a defining feature of an armed attack prevails, the assessment of the attacker’s intent would have to be taken into account when choosing the appropriate self-defensive response in accordance with the necessity condition, since under this condition it is necessary to consider whether it is necessary to resort to the use of force, or whether the attacked State has other, less invasive means of defence at its disposal. 63 In a case where the elements of an armed attack are evaluated only according to the doctrine of “scale and effects” (no account is taken of the perpetrator’s intent), and the fulfilment of these elements has occurred only as a result of the unintended side effects of the cyber operation, it is logical that it is not even in the interest of the perpetrator of the cyber operation to continue the attack, and that a solution should be sought in the first place through peaceful means and not through further use of force. However, I am inclined to the view of Ruys, who, also referring to the reasoning of the ICJ in Oil Platforms and the practice of States, takes the position that as a matter of law, intent should be assessed at the stage of analysing the existence of an armed attack and not only when assessing the condition of necessity. 64 Conclusion The aim of the article was to demonstrate that when assessing the fulfilment of the elements of an armed attack under Article 51 of the UN Charter, the intent of the attacker to carry out an armed attack must also be taken into account. Only a cyber or kinetic attack that is motivated by the attacker’s intent to cause material damage or loss of life on the prerequisite scale can be considered an armed attack, and therefore the right to self-defense can be exercised against it. It has been shown that animus aggressionis (intent to hurt) has been a feature of armed attack since time immemorial, but in the case of kinetic attacks it has been (quite rightly and logically) presumed with the possibility to provide evidence to the contrary. However, in the context of cyber operations, which inevitably entail the risk of a cascade of unintended consequences, the criterion of animus aggressionis must be given substantial weight and be assessed on a case-by-case basis, as only such a course of action is consistent with the objectives and purposes of the United Nations and international law and reduces the risk of conflict escalation. By analogy with the application of the concept of mens rea , firmly established in international criminal law, a method has also been proposed for determining the threshold of attributability of the consequences to the attacker in terms of culpability for the purposes of assessing the fulfilment of the elements of an armed attack. 62 ICC. Judgment of 21 March 2016, The Prosecutor V. Jean-Pierre Bemba Gombo , p. 109, para. 239. See also ICC. Elements of Crimes: General introduction . p. 1, para. 3. Available at . 63 DINSTEIN, Yoram. War, Aggression and Self-defence . 3rd ed. Cambridge: Cambridge University Press, 2001, p. 184; SCHMITT, 2017, p. 344, see supra note 3. 64 RUYS, 2011, p. 166-167 (footnote 199), see supra note 18.

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