CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE… operations may be and are as a routine organized within existing armed conflicts. But there is also serious concern that cyber operations might fall within the scope of use of force under ius ad bellum . The last NATO meeting in Warsaw this year designated this threat as one of serious risk to international security. In connection with some cyber operations or attacks, a serious question has been raised as to whether some cyber operations may separately constitute an armed conflict, giving rise to a right of self-defence. A positive reply in this respect was given in the “Tallin manual”. Under this manual cyber operations may constitute an armed attack if their scale and effects mirror those of a traditional kinetic attack. The ILA Report describes this claim as “an emerging view, but it warns at the same time that any such conclusion must be reached with great caution. A “wide” interpretation of Art. 2 (4) and 51 may affect the interpretation of the law of use of force. It was noted that the vast majority of cyber attacks do not reach the thresholds for either use of force or armed attack. 79 So far no example may be given that any cyber operation has already reached the level of “armed attack”. There are still only (hypothetical) considerations about the possibility of using in response not only a counter-cyber operation but also a kinetic force in self-defence. There is no doubt that a cyber operation can take place in any kinetic attack. But it is already admitted that a cyber operation alone may be considered under ius ad bellum as an “armed attack”. If this conclusion on cyber attack as an “armed attack” were to be trustworthily reached, there must be some proof that cyber operations may be separately equated to a kinetic force threshold. Otherwise separate cyber operations would be difficult to include in the scope of armed attack. As a rule cyber operations related to the use of military force will take place in the framework of kinetic attack. 8. Conclusions The prohibition of the use of force in Art. 2 (4) is a cornerstone of the UN Charter and the contemporary world order generally. The rule on the use of force is also a part of customary international law. According to the UN Charter there are two exceptions from this prohibition. The first one is the exercise of the right of individual or collective self-defence, and the second one is an armed action taken or authorized by the UNSC. It is possible to say that the UN Charter radically changed the international law governing the use of force ( ius ad bellum ). Nevertheless, the prohibition of use of force and the concept of self-defence have been until now unfortunately a matter of controversy in the legal theory and practice of states as well. This contribution is trying to critically reflect the main doctrines and theories limiting the prohibition of the use of force. The most discussed issues include the “real development” limiting in exceptional cases the prohibition of the use of military force, contained in the Art. 2 (4) of the UN Charter. This article deals with

79 Ibid ., p. 26.

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