New Technologies in International Law / Tymofeyeva, Crhák et al.

Art. 51 of the UN Charter, in reference to the customary right of individual and collective self-defense, petrifies its universal and natural (inherent) form while conditioning the contours of its possible application. 627 The aforementioned notion of an armed attack, notably interpreted in the Nicaragua case, stands as a key precondition to any such reaction involving the use of force by the attacked State. The ICJ drew a line between the use of force, as a larger aggregate of forceful acts, and those amounting to armed attacks justifying the otherwise proscribed use of force in response. 628 In regard to the noticeable attribute of the attack, that describes it as armed, the Tallinn Manual repeatedly alludes to the advisory opinion on Nuclear weapons where the ICJ negates any attachment toward the character of the weapons used. 629 The effects of e.g. biological or chemical weapons without any considerable material destruction are proclaimed comparable to the effects of attacks in the cyber domain. Moreover, as the final assessment concerning this issue, by comparison of the impact of cyber operations, inflicting analogous effects as their kinetic counterparts, the armed attacks do not necessarily, in the eyes of the authors of the Tallinn Manual, require any such employment of weapons of any kind. 630 Regarding the necessary degree of force employed to attain the threshold of the armed attack, the ICJ restrained itself only to presenting such acts as the gravest forms of the use of force. 631 The Tallinn Manual demonstrates this notional category of such acts in the cyber domain as equivalents to physical acts engendering deaths and injuries of individuals, as well as damages and destructions of property. Conversely, the actions non amounting to armed attacks are illustrated by acts of cyber-theft, gathering of cyber intelligence, or minor interruptions of non-essential cyber-infrastructure. 632 The eventuality of a multitude of lesser individual incidents, bonded altogether to a composite attack, poses a question of whether those acts may constitute such serious infringement of the prohibition of force aggregating to the intensity of an armed attack. The Tallinn Manual (in concord with the pin-prick doctrine) 633 answers this question in the positive. The interconnection between such acts with identical or concerted actors 627 UN Charter, Art. 51. 628 ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment [1986] ICJ Rep 1986, para 191 and following ; ICJ, Case Concerning Oil Platforms (Islamic Republic of Iran v. United States) , Judgment [1996] ICJ Rep 2003, paras 161, 183, 196–8. 629 ICJ, Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion [1996] ICJ Rep 1996, para 39. 630 Schmitt M, Tallinn Manual on the International Law Applicable to Cyber Warfare (CUP, 2013), p. 54; Schmitt M, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017), p. 340. 631 ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) , Judgment [1986] ICJ Rep 1986, para 191. 632 Schmitt M, Tallinn Manual on the International Law Applicable to Cyber Warfare (CUP, 2013), p. 55; Schmitt M, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017), p. 341. 633 See e.g., Abhimanyu GJ, Rationalising International Law Rules on Self-Defence: The Pin-Prick Doctrine (June 26, 2014). XII(2) Chicago-Kent Journal of International and Comparative Law 23 (2014).

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